Today at the High Court in Edinburgh Lady Dorrian imposed an order for lifelong restriction on John Daly after he pled guilty to rape in Glasgow in April 2010. The punishment part of the sentence was fixed at 7 years.

On sentencing Lady Dorrian made the following statement in court:

“In this case I am satisfied that the risk criteria for the making of an order for lifelong restriction are made out, namely in this case both the nature and the circumstances of the commission of the offence are such as to demonstrate that there is a likelihood that, if at liberty, you will seriously endanger the lives or physical or psychological well-being of members of the public at large.

The Risk Assessment report suggests that you pose a high risk to the safety of the public at large and that there exist few if any protective factors to mitigate that risk. The report from Dr. MacPherson indicates that any issue which you might take with the Risk Assessment report are questions of perception. These are not however factors which would seriously undermine the report. Having given careful attention to Dr. MacPherson’s report, I am satisfied that the conclusions in the Risk Assessment report remain valid.

Since I am satisfied that the risk criteria have been met and that an order for lifelong restriction must be imposed, I have to fix a punishment part. In doing so I am bound by the terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which only yesterday was the subject of criticism by the appeal court in the case of Petch  & Foye.

In fixing the punishment part I must start by addressing what would have been an appropriate determinate sentence for the offence, ignoring the period of confinement which might be necessary for the protection of the public. I must also reflect such discount as is appropriate to reflect the stage in the proceedings at which you indicated your intention to plead guilty and the circumstances in which that indication was given. Finally, I require to reduce that figure further to take account of the early release provisions.

In considering the period which would have been appropriate were I not making an order for lifelong restriction one of the factors which I must take into account is the seriousness of the offence. In that regard I take account of the circumstances and nature of the offence as recorded in the written narrative which indicate a grave offence. Moreover, I recognise that this is the second serious offence of this nature which you have committed and that the appropriate starting point for the previous offence, when you were only 17, was thought to be 8 years. I also take account of the aggravating factor that you were on licence, and thus under conditions requiring you to be of good behaviour, when this offence took place.

You are now 24.

In all the circumstances had I been passing a determinative sentence it would have been an extended sentence, in respect of which the custodial term would have been 15 years, and the extension part 10 years. I would of course have had to reflect the fact that a plea of guilty was tendered and that this was done by means of a section 76 letter. In recognition of that fact I would have reduced the sentence but I would not, having regard to the gravity of it and the factors to which I have alluded, reduced it below 12 years. In the present case I consider that 12 years would have been the appropriate custodial period for the purpose only of punishment and deterrence. The element of protection of the public would have been met by the very long extension period which would have been imposed precisely, and only, for that purpose.  In the case of Ansari, which was not dissimilar but which lacked the very serious previous conviction in the present case, the starting point which was deemed appropriate, leaving aside any element of protection of the public, was 13 years.

Having reached a figure of 12 years, I then have to take account of the early release provisions. The recent decision in the case of Petch & Foye, indicated that the effect of the provisions of the 1993 Act was that court would normally require to reduce the figure so far arrived at by one half in order to give effect to the intention of Parliament.  However, the majority of the court specifically approved the reasoning of Lord Reed in Ansari and the Lord Justice General in O’Neill to the effect that there will be cases where a period of more than half is justified. One of those situations, specifically referred to in Ansari, in para 87, is where the court would otherwise also have made an order for return to prison under section 16 of the 1993 Act of a released prisoner who has committed a further offence. That applies in the present case. The period from the date of commission of the new offence to the date when the original sentence would have been served in full is 707 days. Accordingly I propose to reduce the period of twelve years, not by one half but to 7 years.

The sentence will however be backdated to 12th April 2010".