APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Macfadyen Lord Johnston	[2007] HCJAC29 Appeal No: XC900/06   OPINION OF THE COURT   delivered by LORD JOHNSTON   in   CROWN APPEAL AGAINST SENTENCE   by   HER MAJESTY'S ADVOCATE Appellant;   against   M. M. Respondent:   _______

 

 

Act: A. Stewart, Q.C., A.D.; Crown Agent

Alt: Shead; Bell, Solicitors, Bellshill

 

3 April 2007

This is a Crown Appeal against sentence consequent upon the respondent being convicted on 6 October 2006 at Hamilton Sheriff Court by a unanimous verdict of the jury on the following charges, as amended:

"(1) on various occasions between 1 January 1993 and 31 October 1999, both dates inclusive, you did use lewd, indecent and libidinous practices and behaviour towards B.T. born 1 November 1986, c/o Strathclyde Police, Motherwell, and did handle his private member ... under his clothing, handle your private member and masturbate in his presence, ... compel him to handle your private member ..., place his private member into your mouth ... and did attempt to penetrate his hinder parts with your private member and to have unnatural carnal connection with him ...".

On 27 November 2006 the sheriff, after receiving certain reports, imposed a sentence of three years probation with six additional conditions:

1. That the respondent would, if deemed suitable, attend for assessment when instructed to do so and would fully participate in any group work or individual programme of work aimed at reducing his risk of sexual offending;

2. That the respondent was to attend for alcohol assessment when instructed to do so by the Social Work department;

3. That the respondent was to accept the direction of the Social Work department in respect of where he will reside if alternative accommodation is offered by the local authority;

4. The respondent was to have no unsupervised contact with anyone under the age of 16 years;

5. The respondent was to inform the Social Work department of any employment he undertakes; and

6. The respondent was to attend for any counselling as and when directed to do so by the Social Work department.

It is against that sentence that the Crown has now appealed on grounds of undue leniency.

The terms of the conviction speaks for itself and reflects many acts of indecency over a period of some six years.

This was the starting point of the position taken up by the Advocate Depute. The essential position was that the sheriff had concentrated too much on the issue of treatment and rehabilitation for the respondent and ignored essential elements of the case, including the need for punishment to be imposed. The respondent had been on probation for a similar offence at the time before the period involving the current offence commenced. We were informed that the victim, now aged 20, remains seriously traumatised. A report by a clinical psychologist, Dr Cindy Shiels, which was before the sheriff at the time of sentence, categorises the respondent as posing a high risk for re-offending. The Advocate Depute submitted accordingly that the sheriff had both ignored this aspect of the matter, he failed to give due weight to the factors that he narrated and, in particular, had failed properly to address the issue of punishment, which is an integral part of the sentencing process.

Mr Shead for the respondent pointed out that the time period in the libel represented a degree of latitude which should have been taken into account by the sheriff. The sheriff, he submitted, had been entitled to consider the public interest against the prospect of the respondent being successfully treated and this, it was submitted, he had reasonably sought to achieve by the imposition of the conditions to the probation order, which should not therefore be categorised as unduly lenient. The respondent had a very limited lifestyle being effectively isolated by those who had been around him. He was of low intelligence and could well be vulnerable if sentenced to imprisonment.

It was not disputed that the test for undue leniency is principally found in the case of HMA v Bell 1995 S.C.C.R. 244 to which we make general reference, noting in particular however that the Lord Justice General at page 250 states to the effect that a sentence may well be categorised as unduly lenient where, upon any reasonable view of the matter, custody was the only option and was not imposed.

We are entirely satisfied that this case meets that test. Having regard to the period of time involved, the nature of the offence, the effect on the victim we consider that all these factors point inevitably to custody before even considering the issue of punishment which the sheriff appears to have ignored. He also does not appear to have considered the possibility, if not probability, that the respondent would receive treatment or at least be offered programmes of rehabilitation while in prison provided the sentence was long enough to let such a programme take effect.

While we can understand the motivation of the sheriff in this extremely difficult case, we consider that for the reasons given he misdirected himself in not imposing a custodial sentence which accordingly categorises the sentence of probation, even with the conditions attached, as being unduly lenient. The appeal by the Crown is therefore allowed.

We are now therefore required to consider what is the appropriate custodial sentence in the case of a very serious example of sexual abuse of a young boy who was at the start of the period of the offence only 6 years old. The conviction covers a period of some years and is exacerbated by the fact that the respondent had a previous conviction for an analogous offence dated 24 June 1991, in respect of which a period of two years probation was selected. It is to be noted that the present offence was commenced during the period of that probation. Furthermore, such information as is available is to the effect that the conduct of the respondent on the victim has been and continues to be very damaging. He is now 20 years old.

We have to recognise also that in the psychology report available to us from Dr Shiels, as we have already indicated, the opinion is expressed that the respondent represented a high risk of sexual offending which bore upon our decision that the sentence imposed by the sheriff was unduly lenient. We have to proceed upon the basis that the Scottish Prison Service will be able to devise or offer some programme or treatment that is appropriate to the respondent's needs and it is plain that it is in the interests of the public, as well as the respondent, that such a programme should be made available.

Looking at the matter in general and with particular regard to the circumstances and factors we have enunciated we consider the appropriate disposal should be an extended sentence with a custodial term of four years imprisonment with an extension period of three years to run from the date of sentence because the respondent has not spent any significant time in custody.