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When deciding a sentence, a judge must deal with the offence that the offender has been convicted of, taking into account the unique circumstances of each particular case. The judge will carefully consider the facts that are presented to the Court by both the prosecution and by the defence.
Read more about victims of crime and sentencing.
HMA v Matthew Donald Maltman known as Whyte
Jul 27, 2020
On sentencing, Judge Buchanan made the following statement in court:
“I have listened carefully to all that has been said by your counsel. I have also considered the social work reports, the risk assessment reports, the evidence of Dr Doig and Dr Johnstone and all of the points made on your behalf.
You pled guilty at the trial diet to two charges of the utmost gravity. Your conduct towards your victims, young students who were complete strangers to you, in their own home, was utterly appalling. You entered their flat uninvited in the middle of the night, armed yourself with knives taken from the kitchen and subjected them over a significant period of time to a terrifying and humiliating ordeal which included presenting those knives at them, threatening to kill them, detaining them against their will within the property, robbing them and forcing them to engage in sexual activity with each other. The psychological consequences of your actions for them are likely to be severe and long lasting. In relation to the sexual coercion aspect of your behaviour I am satisfied that that was motivated less by a desire to achieve sexual gratification than a cruel and wicked intention to control, humiliate and degrade your victims.
You have a dreadful record of previous convictions for crimes of all kinds but particularly assault and robbery. You have previously served significant sentences of imprisonment imposed in the Sheriff Court for such crimes including one which involved the use of a knife. The existence of these convictions is an aggravating feature which would be relevant to the selection of the appropriate disposal in respect of charge 2 on the present indictment.
Your previous co-operation when subject to support and supervision in the community has not been good. The circumstances explained and the views expressed by the authors of the risk assessment reports upon this topic lead me to conclude that it is unlikely that you would engage meaningfully and satisfactorily in all the measures of supervision and treatment programmes required to mitigate the high risk which you pose to the public at large. I am satisfied that this is likely to be the position at the time of your release from prison if a fixed or determinate sentence of imprisonment or an extended sentence were to be imposed. I am also satisfied that if you were to be released you would require to be supervised and monitored in the community not for a fixed period of greater or lesser duration but upon an indefinite basis.
In light of the nature and circumstances of the crimes which you committed, your record of offending and the risk factors which have been identified I am satisfied that there is a likelihood that, if at liberty, you will seriously endanger the lives, or physical or psychological wellbeing, of members of the public at large.
Accordingly, the requirements for the imposition of an order for lifelong restriction are, in my opinion, satisfied. This disposal constitutes a sentence of imprisonment for an indeterminate period. It means that you will only ever be released from prison into the community if the Parole Board for Scotland can be satisfied that public safety will not be endangered by such a course being taken. And even then you will be subject to particularly strict conditions and liable to be recalled to prison if you break them. For the rest of your life you will be subject to continuing risk management and close supervision.
The law requires me to set a minimum term of imprisonment which is referred to as the punishment part of your sentence. This is no more than the minimum period which you must serve in prison before the Parole Board can, in the future, even consider your case. I wish to stress that this is no more than a minimum period and it should not be thought by you or anyone that it in any sense reflects my view of when you should be released. Under the law passed by Parliament, whether and when you may be released, after the expiry of the minimum period is a matter, as I have said, for the Parole Board. Given the high level of risk which you present to the public it is possible that you may never be released.
The law provides a particular approach which a judge must adopt in setting the punishment part of this type of sentence. I must start by considering what would have been an appropriate determinate sentence for the offences which you committed, ignoring the period necessary for the protection of the public. I must also allow 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 am bound to make a further reduction to take account of the rules about early release.
In the circumstances of the present case had I been imposing a determinate sentence after a trial in respect of charges 2 and 6 I would have imposed an extended sentence of 17 years comprising consecutive custodial parts of 8 years upon charge 2 and 4 years upon charge 6 together with an extension period of 5 years for the protection of the public.
However, in recognition of the fact that you tendered pleas of guilty on the day the trial was due to start and thereby avoided the need for witnesses to give evidence I would have restricted the custodial parts of the sentence in the following way:
Charge 2: 7 years imprisonment with 12 months of that period being attributable to the bail aggravation;
Charge 6: 3 years and 6 months imprisonment with 6 months of that period being attributable to the bail aggravation.
That would have resulted in a total custodial term of 10 years and 6 months. The public protection element of the overall sentence would have been met by the lengthy extension period imposed for that specific purpose.
I then have to take account of the early release rules. This means that the period of 10 years and 6 months falls to be reduced by 50 per cent so that the punishment part becomes 5 years and 3 months.
I repeat that the punishment part must be understood as a bare minimum, which I am obliged by statute to calculate, using the process I have just explained.
You were first remanded in custody in connection with this matter on 30th April 2018 and, ordinarily, this sentence would have been backdated to that date. However, since you were remanded in custody you have received two sentences of imprisonment in Aberdeen Sheriff Court imposed in respect of other crimes committed by you.
The first of those was a sentence of 9 months imprisonment imposed on 16th May 2019 which was ordered to run from that date. The second was a sentence of 15 months imprisonment imposed on 5th May this year to run from that date. In those circumstances I will backdate the punishment part of 5 years and 3 months to 30th April 2019.
In respect of charge 8, which is less serious, I would have imposed a sentence of 18 months imprisonment but in recognition of your plea of guilty I will restrict the sentence to one of 16 months with 2 months of that period being attributable to the bail aggravation. That sentence will run concurrently with the order imposed in respect of charges 2 and 6.
In the whole circumstances, and particularly in view of the relatively short period involved, namely 109 days, and the significantly complicating effect it would have upon the whole sentencing process in this case, I do not propose to make any order under Section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of the backdated sentence of 14 months imprisonment imposed upon you at Aberdeen Sheriff Court on 24th November 2017 which was not due to expire until 16th August 2018 and from which you were released early on 16th January 2018.
Your conviction upon charge 6 of the indictment triggers the notification requirements of the Sexual Offences Act 2003 and you now become subject to those requirements for an indefinite period.”
27 July 2020