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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Clarke
Lord Mackay of
Drumadoon
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[2008] HCJAC 67
XC227/08
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEAL IN TERMS OF
SECTIONS 108 AND 110 OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
HER MAJESTY'S ADVOCATE
Appellant
against
THOMAS RUSSELL CURRIE
Respondent
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Appellant: G Allen, Q.C., A.D.; Crown Agent
Respondent: Martin, Solicitor
Advocate; Martin, Johnston & Socha,
Kirkcaldy
14 November 2008
The background
circumstances
[1] The respondent was indicted in the High
Court of Justiciary on an indictment containing three charges. The respondent pled not guilty and went to
trial. On 8 February
2008, the
respondent was found guilty of charge (1), as amended, and guilty of
charge (3), subject to modification.
He was acquitted on charge (2).
On that date, the Court adjourned the case until 7 March
2008 for the
purpose of the preparation of a Social Enquiry Report.
[2] The terms of
the charges on which the respondent was convicted were as follows:
"(1) between 1 November
2006 and 24 December 2006, both dates inclusive, at 7 Methil
Brae, Methil, Fife you did have unlawful sexual intercourse with JCH ... born
15 June 1993, a girl then above the age of 13 years and under the age
of 16 years. Contrary to the
Criminal Law (Consolidation) (Scotland) Act 1995
section 5(3);
...
(3) between
6 February 2007 and 3 March 2007, both dates inclusive, at Iron
Bridge, Iron Bridge Road, Leven, Fife you did assault LMETY, born 21 March
1993 ... and did lie on top of her and you did attempt to rape her."
[3] On 7 March
2008, the
trial judge made a Probation Order on the respondent, with a duration of
three years and containing a condition that the respondent should
undertake 200 hours of unpaid work in the community.
[4] The appellant
has now appealed against the foregoing disposal on the ground that it is unduly
lenient. The grounds of appeal tabled by
the appellant are in the following terms:
"(1) The
respondent was found guilty after trial of a contravention of section 5(3)
of the Criminal Law (Consolidation) (Scotland) Act 1995 and of attempted
rape. The respondent was aged 17 at the
time of both offences, and the complainer in each case was aged 13.
(2) In
respect of charge (3), the learned trial judge erred in having
insufficient regard to the serious nature of the offence, the age of the
complainer, and the use of force by the respondent.
(3) The
learned trial judge erred in failing to have due regard to the likely risk
posed by the respondent. According to
the Social Enquiry Report, the respondent displayed little empathy to his
victims. He tended to justify his
actions in respect of both offences and continued to deny any wrongdoing in
respect of charge (3). She failed
to have due regard to the fact that the respondent's conviction suggested a
risk of escalating offending towards young girls.
(4) The
learned trial judge erred in failing to obtain a full risk assessment. The case was one in which an extended
sentence might well be appropriate. But
the only report of a risk assessment was contained in a brief paragraph in the
Social Enquiry Report, and it was acknowledged that this might require to be supplemented.
(5) In
all the circumstances the sentence imposed did not reflect the seriousness of
the offences, the need for deterrence, or the need to protect the public."
[5] The trial
judge has furnished the Court with a detailed report concerning the case. Of the offence to which charge (1)
relates, she informs us that the complainer gave evidence that, by prior
arrangement, she had met up with the respondent with the intention of having
sex. They had not met before, but had
communicated through an internet chat room.
Both of them had wanted to have sexual intercourse and that was the
plan. The complainer had travelled with
two girlfriends and met up with the respondent and some of his friends in
the house of a friend of the respondent.
The complainer freely admitted in evidence that she wanted to have sex
and told the respondent that that was what she wanted. The police had later come to ask her about
the incident, but she did not want to report it. She had no complaint to make about the
respondent. In evidence she was
equivocal about what she had told the respondent concerning her age. She agreed that she might have lied to him
and claimed to be older than she was.
She said that she and the respondent had gone to a bedroom in the house
and had consensual sexual intercourse.
At that time the others had been in the livingroom. There was no
evidence of concern expressed by anyone.
In a police interview, the respondent had said that the complainer had
lied about her age and had represented herself to be older than she was. He had thought that she was about 16. The complainer said that she had looked older
because she was all dressed up.
[6] As regards
the offence to which charge (3) relates, the trial judge informs us that the
incident involved "was a chance encounter of short duration in which the
respondent showed a terrible mistake in judgment and attempted rape in
circumstances which were not very clear".
In the evidence led at the trial there had been three separate
versions of the relevant events, which were difficult to reconcile. In these circumstances, the trial judge says
that she considered that it was essential to sentence only on the basis of the
very limited narration set out in the charge.
There had been no violence and no physical injuries to the
complainer. The assault consisted of
lying down on the complainer when, according to her, she was asleep. When the complainer awoke and told the
respondent to get off her, the incident came to an end. Evidence had been given about the incident by
the complainer herself and Darren Joseph Devlin. In addition, in an interview with the police,
when the respondent had been detained in terms of section 14 of the
Criminal Procedure (Scotland) Act 1995, the respondent had given
an account of consensual sexual activity in which he had tried but failed to
achieve penetration of the complainer's vagina.
Darren Devlin had given an account of the incident which was not
consistent with either the evidence of the complainer or the version of events described
by the respondent in his police interview.
It was against that background that the trial judge had felt understandably
unable to reach a conclusion as to the precise circumstances of the offence
beyond the narration set out in the charge.
Submissions of the appellant
[7] The Advocate depute on behalf of the
appellant submitted that the sentence imposed in cumulo on charges (1) and (3) was unduly lenient, within
the meaning of the legislation. He drew
our attention to the details of the offences, but only in so far as they were
disclosed in the trial judge's report.
He also drew our attention to the contents of the Social Enquiry Report
dated 3 March 2008, so far as it recorded the
respondent's account of the offences. He
submitted that a custodial sentence should have been selected following upon
the making of a further risk assessment, which the trial judge should have
ordered.
[8] While it was
clear that the respondent's version of the incident must have been rejected by
the jury, to the extent that it referred to consensual sexual activity, he had
indicated that he had attempted and failed to have intercourse with the
complainer. However, the respondent had
been convicted of the serious offence of attempted rape. On that basis alone, the sentence selected
was unduly lenient. On the assumption
that the Court did not accept that submission, a further risk assessment from a
psychologist should now be ordered by this Court. The trial judge had considered the issue of
risk to the public, as appeared from pages 10 and 12 of her report, but
she had not been entitled to take the view that she did, which was to the
effect that the public would be likely to be better protected by the selection
of the sentence that she imposed as opposed to a custodial disposal. The appellant's submission was made in the
full knowledge that, to all intents and purposes, the respondent was a first
offender.
Submissions of the
respondent
[9] The solicitor for the respondent
submitted that, while the sentence selected by the trial judge was lenient, it
was not unduly lenient. The trial judge
had considered the issue of whether the respondent presented a risk of
re-offending. It was evident that she
had had available to her the outcome of a risk assessment undertaken by a
social worker using the Risk Matrix 2000 Assessment Tool, the conclusion of
which was that the respondent was assessed as being at a medium risk of sexual
recidivism and medium risk of violent related offending. Significance had been attached to the fact
that the respondent did not have an extensive criminal record. There had been no reason why the trial judge
should have ordered a further risk assessment.
Furthermore, the respondent had been the subject of a curfew for nearly
12 months and had not breached it in any way. The Risk Matrix 2000 Assessment Tool was
widely used and could be relied upon.
Only if there had been some exceptional feature of the case would it
have been necessary for the trial judge to order a further risk
assessment. There was no reason at all why
the trial judge should have explored the possibility of imposing an extended
custodial sentence in terms of section 210A of the 1995 Act, since it
could not be concluded on the basis of the offence alone that the public was at
risk of "serious harm", the criterion enacted in that section. The evidence relating to charge (3) had
been conflicting. No confident
conclusion could be drawn as to the particular facts of this offence, beyond
the terms of the libel itself, as had been realised by the trial judge. That had been a correct approach.
[10] It was open to
the Court to take account of the progress made by the respondent in the
performance of the Probation Order and unpaid work in the community. Although the appellant had sought to have the
remaining part of the sentence suspended until the determination of the present
appeal, the Court had declined to do that.
There were now available to the Court Supplementary Social Enquiry
Reports, dated 11 April and 16 June 2008; the terms of the latter report were of
particular significance. It stated that
the respondent had continued to demonstrate a very high level of commitment to
his responsibilities. He had done all
that had been asked of him. There were
no current concerns over his conduct in the community. In the opinion of the writer, it was
difficult to see how he could have done more to convince those who worked with
him that he was worthy of a community-based disposal.
The decision
[11] It was submitted to us on behalf of the appellant
that the trial judge should have ordered a further risk assessment from a
psychologist in this case, over and above the risk assessment referred to in
paragraph 3.1 of the Social Enquiry Report carried out using Risk Matrix
2000 Assessment Tool. We cannot agree
with that submission. The Risk Matrix
2000 Assessment Tool is regularly and widely used for the purposes of assessing
the risk presented by an offender to the public. While, from time to time, risk assessments
are ordered from psychologists, in our opinion there is nothing in the
circumstances of this case that should have caused the trial judge to conclude
that that was necessary here. In our
view, she was quite entitled to proceed upon the basis of the outcome of the
risk assessment carried out using Risk Matrix 2000.
[12] It is quite
evident from the Report of the trial judge that she had given careful
consideration to the issue of risk. At
page 10 of her Report she explains that she had formed the opinion that a
custodial disposal would "harden" the respondent and that the longer term risks
would be likely to increase as a result.
She considered that custody was far less likely than the sentence which
she did impose to result in a reduction in risk to the public. She considered that the respondent was now at
a crucial stage of his development and had shown some indications that he might
be sufficiently motivated to refrain from offending and embark upon a programme
which would, not only address his behavioural problems, but also involve him in
a work regime, as part of the punishment.
Furthermore, at page 12 of her Report, she observes that the
respondent had demonstrated over the last year that he did not pose an
immediate risk to the public. The aim of
the sentence which she did select was to reduce any risk that there was.
[13] While the
disposal selected by the trial judge was made in respect of the convictions on
both charges (1) and (3), it was quite understandable, in view of the
circumstances, that charge (1) hardly featured at all in the appellant's
submissions. However, an offence of
attempted rape must be seen, in general, as a serious offence. Nevertheless, in the particular circumstances
of this case, there were obvious evidential difficulties in reaching any
definite conclusion as to exactly how serious the offence to which
charge (3) relates was. The crime
of attempted rape may range from an incident involving, as here, no violence,
on the one hand, to one which might involve extremes of violence and consequent
serious injury, on the other. The
consequences of the crime may therefore vary enormously according to
circumstances. We do not think that it
can be maintained, as a general proposition, that a conviction for attempted
rape must always be visited by the imposition of a custodial sentence,
regardless of the particular circumstances of the case. As the trial judge herself observed, because
of the evidential conflicts in the case, she considered, that she was confined
to sentencing only on the basis of the very limited narration set out in
charge (3). In addition, she
records - and this is worth emphasising - that there was no violence and no
physical injury to the complainer. It
should also be emphasised that, during the course of the hearing before us, the
Advocate depute did not attempt to expiscate the circumstances of the offence
to which charge (3) relates, by reference to the evidence led at the
trial. Whether that could have been
achieved is open to question, in view of the three separate versions of the
events which were, it seems, spoken to in evidence. Be that as it may, no attempt was made to do
so on behalf of the appellant. In these
circumstances, we can do nothing other than proceed as the trial judge did,
that is to say to assess the sentence imposed on the basis of the narrative set
out in the charge itself. Against this
background, we cannot say that the sentence which the trial judge selected was
one which she was not entitled to select in all the circumstances of the
case. At the time of the offence to
which charge (3) relates, the respondent was only 17 years old and
did not possess any significant previous convictions. He had not been the subject of any previous
custodial sentence. Those factors, in
our opinion, lend force to the view that the disposal selected by the trial
judge was within the range of disposals she was entitled to adopt in the
circumstances. For all of these reasons
we can conclude that her sentence was not unduly lenient. The appeal must therefore be refused.
