Robert Foye V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Woolman,Lord Wheatley |
| Judgment Date | 28 September 2011 |
| Neutral Citation | [2011] HCJAC 94 |
| Date | 27 September 2011 |
| Published date | 27 September 2011 |
| Court | High Court of Justiciary |
| Docket Number | XC640/08 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lord Woolman Lord Wheatley | [2011] HCJAC 94 Appeal No: XC640/08 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST SENTENCE by ROBERT FOYE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, Advocate & Mackenzie, Advocate; instructed by Messrs Drummond Miller, Solicitors, Edinburgh
Respondent: G Mitchell, QC, AD; instructed by the Crown Agent
28 September 2011
The background circumstances
[1] On 23 January 2008, at a diet in terms of section 76 of the Criminal Procedure (Scotland) Act 1995, "the 1995 Act", the appellant pled guilty to an indictment in the following terms:
"On 24 August 2007 at a wooded area at Dowanfield Road, Cumbernauld you did assault FH ... and did seize her by the neck, place your hand over her mouth, pull into said wooded area, repeatedly punch her on the head, pull to the ground, kiss her on the mouth, kiss and handle her breasts, pull down her trousers and pants and force her legs apart all to her injury and you did rape her".
On that occasion there was put before the court a schedule of previous convictions relating to the appellant, which contained several convictions for assault and other offences and a conviction dated 5 July 2002 in the High Court at Edinburgh of inter alia attempted murder, in respect of which a sentence of ten years imprisonment had been imposed.
[2] The circumstances of the offence, as they were presented to the sentencing judge in an agreed narrative, were as follows. On 24 August 2007, the complainer, who was then aged 16 years, had gone into Cumbernauld in order to collect new contact lenses in time for the commencement of the new school term. She was about to enter the academic year in which she would sit Highers and, hopefully, obtain the necessary grades for university entrance. On her way home, she had proceeded along a route which took her on a footpath through a wooded area. There she encountered the appellant, who asked her the time. She replied that she did not know and continued walking. However, he then proceeded to assault her, seizing her, putting his hand over her mouth, placing his other arm around her neck and pulling her forcefully into the woods. There he punched her and restrained her. The complainer screamed and struggled, whereupon the appellant told her to shut up and tightened his grip around her mouth, restricting her breathing with the arm that was still around her neck. He then forced her to the ground. She continued to struggle, but was terrified into desisting from doing so by the appellant. The appellant then forced himself on her, putting his mouth over hers, handling her breasts, pulling down her trousers and pants and forcing her legs apart. Thereafter he penetrated her twice with his private member. This was her first experience of sexual intercourse. Thereafter the appellant left the complainer, telling her to remain where she was until he had gone.
[3] The complainer was extensively bruised and scratched about her eyes, cheek, ear, lip, forehead, hands, arm, flank and breasts. She was in a dishevelled state, but was able to make her way back to the path along which she had been walking, where she received help from passersby who called the police.
[4] The attack is said to have had a serious effect upon the complainer and her ability to lead a normal life. Initially she tried to cope, but quickly found that she could not attend school at all in the early weeks after the attack and when she did return it was on a part-time basis only. She became fearful of going out and had suffered substantially negative psychological effects. She felt scared when she did go out. The sight of men in the area of her home made her anxious and feel insecure. She felt unable to make decisions and found it difficult to talk openly to people. It was to her credit that, notwithstanding the fact that she had been able to attend school only on a part-time basis over her last academic year and required counselling, she obtained excellent examination results.
[5] At the time of the offence, the appellant was an absconding prisoner from Castle Huntly Prison. He had been released from that establishment for one day on 18 August 2007 to enable him to attend a meeting of Alcoholics Anonymous. Rather than return to prison, the appellant travelled to the Cumbernauld area where initially he stayed with friends, subsequently living rough in a secluded spot in the hope of avoiding detection. Thereafter he had proceeded to Manchester before returning to the Cumbernauld area. When first apprehended by the police in connection with the present matter on 25 August 2007, he denied having been in the area the previous day and also denied having had sexual intercourse with anyone that day.
[6] At the diet on 23 January 2008, having heard the narrative of the offence, the court adjourned the case until 18 February 2008 to enable a social inquiry report and a psychological report to be obtained dealing with the possible appropriateness of the imposition of an extended sentence in terms of section 210A of the 1995 Act. On 15 February 2008, by agreement, that diet was discharged and a fresh diet assigned for 22 February 2008. On that latter date, the sentencing judge, having considered the social inquiry report and the psychological report made a Risk Assessment Order in terms of section 210B of the 1995 Act, as amended, appointing Mr Mark Ramm, a person accredited for the purpose of section 210B by the Risk Management Authority to prepare a risk assessment report in regard to what risk the appellant being at liberty presented to the public at large. The diet was adjourned to 6 May 2008 pending the preparation of that report. Because of the non-availability of the report on that latter date, the diet was again adjourned to 16 July 2008 pending the preparation of the report. There were further adjournments until 1 October 2008, by which time the report and a supplementary report were available.
[7] On 1 October 2008, the court, being satisfied that the risk criteria were met, made an order for lifelong restriction under section 210F of the 1995 Act, and, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, "the 1993 Act", ordered that a period of nine years imprisonment should be served by the appellant before the provisions of sections 2(4) and 2(6) of the 1993 Act should apply. That sentence was ordered to run consecutively to the total period of imprisonment to which the appellant was already subject. The minute of that hearing records that:
"In selecting the 'punishment part' aforesaid, the court indicated that it had taken account of the accused's early plea, and the guidelines set out in Ansari v Her Majesty's Advocate, and that the starting point of any determinate sentence, after discount in terms of section 196 of the Criminal Procedure (Scotland) Act 1995, would have been 13 years."
[8] Against that sentence the appellant has appealed. The ground of appeal in respect of which leave to appeal has been granted is in the following terms:
"2. In addition the appellant appeals against the punishment part selected because:
(a) the appellant pled guilty by section 76 letter at the earliest opportunity and intimated to the Crown not to precognosce the complainer and in addition the agents did not precognosce the complainer to prevent her further distress.
(b) in addition he expressed remorse for his involvement in this offence and,
(c) the discount that aught (sic) to have been applied to all of these circumstances was insufficient standing the fact that as the learned trial judge imposed a lifelong restriction order he will require to serve all of the period selected before being eligible for parole."
[9] Since the procedure followed in this appeal has been unusual, it is appropriate to outline it. On 26 March 2009 the appeal came before a two-judge sentence appeal court, when the court remitted the appeal to a bench of three judges. On 18 December 2009 the appeal, along with the appeal of Morris Petch (XC 663/07) was heard by a court of three judges. The court, having heard counsel for the appellant and the advocate depute and being satisfied that the submissions made raised important issues in relation to the five judge decision in the case of Ansari v Her Majesty's Advocate 2003 S.C.C.R. 347, appointed the appeal to be heard by a bench of seven judges. On 28 and 29 September and 21 and 22 October 2010, a court comprised of seven judges heard the appeal along with that of Morris Petch. On 1 March 2011, that court, for the reasons given in its majority opinion, decided that the decision of the majority of the court in Ansari v Her Majesty's Advocate should be overruled and that the approach of Lord Reed in that case to the provisions of section 2(2) of the 1993 Act, as amended, should be adopted by sentencing judges. It held, with Lords Osborne and Emslie dissenting, that the exercise set forth in section 2(2)(aa) was, taken as a whole, so redolent of the exercise envisaged by the court in O'Neill v Her Majesty's Advocate 1999 S.C.C.R. 300 that it was inconceivable that Parliament had intended to do anything other than to give statutory effect to what the court had there envisaged. In any event, if the construction of that provision, as a matter of language, was not clear, the legislation could readily be described as ambiguous or obscure, and resort could legitimately be had to Parliamentary material, which made plain that that was provision's intention; that, with regard to section 2(2)(aa)(iii) the prisoners who would or might be released pursuant to section 1 of the Act, being short-term and long-term prisoners respectively, would be or might be so released after serving one-half of their sentences, therefore the sentences designated under that provision ought to be halved; and that the principled...
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