APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lady Cosgrove	[2010] HCJAC 72 XC201/10 OPINION OF THE COURT delivered by LORD REED in APPEAL AGAINST SENTENCE by ANTHONY PETER CLARK Appellant; against LORD ADVOCATE Respondent: _____________

Appellant: A Ogg, solicitor advocate; J C Hughes, Glasgow

Respondent: R Cleland AD; Crown Agent

25 June 2010

[1] This is the appeal of Anthony Clark, who pled guilty to two charges. The first charge, brought under section 3(1)(b) of the Sexual Offences (Amendment) Act 2002, concerned a girl towards whom the appellant had acted as a foster father for some time. The offence involved his taking photographs of her when she was 16. Although the poses adopted by the complainer were inappropriate in the context of a relationship between a foster parent and foster child, it is important to note that the photographs were not pornographic. They were taken at the girl's request for her to load on to her mobile phone, and she struck the poses. She was not naked or topless, and the photographs could be described as inappropriate only because of the provocative nature of the poses which she struck. There was no element of physical contact involved.

[2] The appellant was a first offender of previous good character. The Sheriff imposed a sentence of 12 months imprisonment in respect of that charge, which he had reduced from a starting point of 16 months imprisonment. It appears to us, given the very limited nature of the activity involved in that charge, that the selection of a custodial sentence was disproportionate. Any breach of trust by a foster parent is of course a serious matter, but the sentence imposed must be proportionate to the gravity of the breach of trust involved. This case is very much at the lower end of the scale of cases which might be envisaged.

[3] The second charge, brought under section 52A(1) of the Civic Government (Scotland) Act 1982, involved the possession of child pornography, not involving any member of the appellant's family. The Sheriff imposed the sentence on that charge prior to the guideline judgment of this court in the case of Her Majesty's Advocate v Graham, in which the opinion was issued on 27 May 2010. In the light of that judgment, where an offender possesses a large amount of level one material, that is to say material falling into the lowest category of prohibited material, and no more than a small amount of more serious material, the starting point should be a community service order, although probation or a fine may be appropriate. In this case virtually all of the material was at level one. There were no moving images. There was no element of distribution, and no commercial aspect. In those circumstances, bearing in mind the recommendations of the Social Enquiry Report and the report by the Tay Project, the appropriate disposal in our view was the imposition of a period of probation of 3 years. Certain conditions require to be attached to any probation order: in particular, that the appellant attend and participate in the Community Sex Offender Group Work programme as directed by his supervising officer; that he does not live in a household with anyone under the age of 17; and that he accesses psychiatric counselling or treatment as directed by his supervising officer.