Petch & Foye v HM Advocate

 

Summary

This judgment addresses the calculation of the punishment part of discretionary life sentences. 

 

Nature of the case

This case concerned the calculation of the ‘punishment part’ of a discretionary life sentence. This judgment shows just how complicated the sentencing process can be at times.

A discretionary life sentence is a life sentence that a court chooses to give – this is different from murder cases, where a life sentence has to be given. 

A life sentence is an ‘indeterminate’ sentence, because it doesn’t have a fixed end point (e.g. 5, 10, 20 years) – it lasts for the rest of an offender’s life.   

Because there is no fixed end point of a life sentence, a judge will set a ‘punishment part’. This means a minimum period of time is set that an offender must spend in prison before being considered for release by the Parole Board. 

If the Parole Board decides to release the offender, they will be released on licence into the community to serve the rest of the sentence under certain conditions. These conditions include the offender returning to prison if they commit a new crime.

The way judges calculate the punishment part in this type of case is by doing a comparison with what would happen if the person had been given a determinate (fixed) sentence instead of a life sentence. This is discussed further below. 

 

Facts

Morris Petch was charged with rape. He pled not guilty but was convicted after a trial of two charges of rape involving girls aged between eight and 11 years. On 10 August 2007, he was sentenced to life imprisonment, and the punishment part of that sentence was given as 12 years.

He appealed against sentence to the High Court. Due to the complex and important issues raised in the appeal, the Court decided to hear the case along with the appeal of Robert Foye (see below), in order to look again at the way in which the punishment part of a discretionary life sentence was calculated.

Robert Foye was charged with assault to injury and rape of a 16-year-old girl. On 23 January 2008, at the High Court at Glasgow, he pled guilty.

On 1 October 2008, he was made the subject of an Order for Lifelong Restriction, and the punishment part of that sentence was given as nine years.

Both these appeals were heard by three judges on 18 December 2009. At that hearing, doubts were raised about whether a previous case, Ansari v HMA 2003 JC 105, was correct. For that reason, the three judges asked for the appeals to be heard by a Bench of seven judges. The seven judge Bench delivered its opinion on 8 January 2010.

 

Issue

The issue in this case was the interpretation of the law about how to calculate punishment parts for discretionary life sentences.

That subsection (as amended) gives rise to a number of difficulties of interpretation. 

The major issue was about how to compare a discretionary life prisoner, who is always given an indeterminate sentence, with a person who is sentenced to a determinate (fixed) number of years. 

Differences of opinion had emerged among judges in previous cases as to the best way to approach that exercise. 

 

Decision

In this case, the court decided that:

As a result, in the case of Mr Petch, his punishment part was reduced from 12 years to eight years.

In the case of Mr Foye, his punishment part was reduced from nine years to four years and six months.

 

Example of the effect of the Petch and Foye decision

This is a complex area of law. The example below demonstrates the ‘anomaly’ described above, where a person getting a life sentence (which in theory should be the more serious sentence) is eligible for parole earlier than someone who receives a determinate (fixed) sentence. 

Before the Petch and Foye decision

Offender A receives a discretionary life sentence. If the court had decided not to impose a non-mandatory life sentence, the starting determinate sentence would have been 12 years. However, the court decides that a sentence discount of 25% applies in respect of an early guilty plea by the offender. This reduces the notional determinate sentence to nine years. For a determinate sentence of nine years, an offender can apply for parole at the halfway point of the sentence at four years six months. Offender A is therefore eligible to apply for parole after four years six months.

Following the Petch and Foye decision

Following the Petch and Foye case, if the court chooses to impose a non-mandatory life sentence, the court would set the punishment part of the non-mandatory life sentence as follows.

The first step is to calculate the starting notional determinate sentence. In this case that would have been 12 years, as in the example given above. The protection of the public element is two years. The second step is to strip out this two year period, leaving 10 years. The third step is to work out when a person could be released on parole, if they were serving a determinate sentence. For a determinate sentence of 10 years an offender can apply for parole after five years. This means the punishment part is five years. A sentence discount of 25% would be given because of an early guilty plea. This leaves a punishment part for offender A of three years nine months.

So, in this example, the difference between the position before and after the decision is as follows.

Table showing when Offender A becomes eligible for parole

Before the Petch and Foye case

After the Petch and Foye case

4 years 6 months

 

3 years 9 months

What happened next?

The Scottish Parliament legislated in 2012 to fix this issue – see the relevant Act.

Example of what the effect of this law would be on the sentence calculation exercise

Before the Petch and Foye case

Offender B receives a non-mandatory life sentence. If the court had decided not to impose a non-mandatory life sentence, the starting determinate sentence would have been 15 years.

However, the court decides that a sentence discount of 10% applies in respect of an early guilty plea by the offender. This reduces the determinate sentence to 13 years six months. For a determinate sentence of 13 years six months, an offender is eligible to apply for parole at the halfway point of the sentence at six years nine months. Offender B is therefore eligible to apply for parole after six years nine months.

After the Petch and Foye case

Following Petch and Foye, if the court chooses to impose a non-mandatory life sentence, the court would set the punishment part of the non-mandatory life sentence as follows.  

The first step is to calculate the notional determinate sentence.  In this case it would have been 15 years. The protection of the public element is one year.  

The second step is to strip this out. This leaves 14 years.  

The third step is to look at when a person serving a determinate sentence would be eligible for parole. This would be seven years, so the punishment part is seven years.  

A sentence discount of 10% applies in respect of an early guilty plea. This leaves a punishment part for offender B of six years, three months and 18 days.

After the Criminal Cases (Punishment and Review) Scotland Act 2012 came into force

Using the 2012 Act, the court would set the punishment part of the non-mandatory life sentence as follows.  

The starting notional determinate sentence would have been 15 years. The protection of the public element is one year. This leaves 14 years. The court therefore has discretion to set the punishment part at between seven years and 14 years (this being between one half of and the full amount of the part of the notional determinate sentence relating to punishment and excludes the protection of the public element). Whatever the courts decides, a sentence discount of 10% applies for an early guilty plea. This means a punishment part for offender B of between six years three months 18 days, and 12 years seven months six days can be set.

Table showing when Offender B becomes eligible for parole

Before Petch and Foye case

After Petch and Foye case

Under the Criminal Cases (Punishment and Review) (Scotland) Act 2012 

six years nine months

six years, three months 18 days

Between six years, three months 18 days and 12 years seven months 

 Petch & Foye v HM Advocate