Scottish High Court of Justiciary Decisons

ANDREW WALKER PENMAN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 178 (7th July, 1999)

On 13 January 1999 the appellant pled guilty to three amended charges of shameless indecency. These charges concerned his conduct towards three sisters. Charge 1 on the indictment related to various occasions between 2 October 1966 and 15 April 1976 when the girl was 4-13 years of age. Charge 3 related to his conduct on various occasions between 28 November 1972 and 15 April 1976 when the second girl was aged 9-13 years of age. Charge 5 related to his conduct on various occasions between 16 May 1971 and 15 April 1976 when the third girl was aged 3-6 years of age. On 9 February 1999 the appellant was sentenced to six years imprisonment as from that date.

The report by the sentencing judge states that the children had suffered from unfortunate circumstances. Their father had died in November 1972. Their mother, who was an alcoholic, did not look after them well. In the result the children were neglected. On many occasions they were physically abused by their mother. The appellant was a neighbour of the children for a considerable number of years. The offences were committed by him when he was babysitting for them, and accordingly was in a position of trust. As regards charge 1, conduct began with the fondling of the girls' private parts and went on to inducing her to handle the appellant's private member and masturbate him to the emission of semen. This conduct occurred on many occasions. Charge 3 was similar in nature. Charge 5 was limited to the appellant's handling of the girls' private parts and inserting his finger into them.

No notice of previous convictions was placed before the court by the Crown. However, a social enquiry report on the appellant referred to the fact that the appellant had been convicted in the High Court on 19 February 1996 on four charges of lewd, indecent and libidinous practices and behaviour and one charge of assault, in respect of which a cumulo sentence of three years imprisonment was imposed on him. Each of the four charges of indecency related to a single occasion, the earliest being between 16 February 1982 and 28 October 1983 and the latest being between 10 August and 15 November 1987. The assault charge related to a single incident which occurred between 1 January 1993 and 25 August 1995. It appears that the appellant was released from imprisonment on 28 August 1997. In November of that year he was interviewed by the police in connection with the present offences which were not known to the Crown at the time of the proceedings which led to his conviction on 19 February 1996.

The sentencing judge took the view that it was proper for him to take into account that conviction in forming a view as to the extent to which he should have in mind the protection of the public. It appeared to him that it was of considerable significance in that connection. In his report he states that, had the conviction of 19 February 1996 not been before him, he would have been able to conclude that, in all probability, having regard to the age of the offences with which he was dealing, the appellant no longer constituted a serious threat to the public. However, the facts and circumstances surrounding the conviction of 19 February 1996 made it very difficult, in his opinion, for him to take that view. The latest date of any offence committed by the appellant, to which the conviction of 19 February 1996 related was 25 August 1995. Accordingly he felt unable to conclude that the panel no longer constituted a threat to the public, since he had committed an analogous offence as recently as that.

For the appellant, Mr. Shead did not dispute that it was competent for the sentencing judge to take into account the information disclosed in the social enquiry report as to his conviction on 19 February 1996. However, he maintained, in accordance with the grounds of appeal, that it was inappropriate to have regard to it. The appellant had served his sentence and paid the penalty deemed appropriate by the court. The sentencing judge had been in error in holding that the conviction demonstrated that the appellant was a danger to the public. In developing these grounds of appeal, Mr. Shead submitted that it had been for the court on the previous occasion to determine whether or not the appellant did represent such a danger. It was important to note that there was a long gap between the indecency charges and the assault charge in the indictment which had been dealt with in 1996. Further, although he accepted that the present charges were of a more serious nature and extended over a longer period, they did not add anything of significance in regard to the question of need for the protection of the public. It was also important to bear in mind the length of time which had elapsed since they had been committed. On any view nine years imprisonment for the total offences was excessive.

The present case is unusual in respect that the conviction which the sentencing judge took into account was after the offences with which he was concerned. The procedure by which the prosecutor has to give notice of any "previous conviction" which he intends to put before the court - currently governed by section 69 of the Criminal Procedure (Scotland) Act 1995 - derives from the old practice of the Crown libelling convictions as aggravations of the offence. Since the conviction dated 19 February 1996 did not antedate the offences in the present case, it was not a "previous conviction" within the meaning of section 69. On the other hand it was mentioned in the social enquiry report on the appellant. In Sillars v. Copeland 1966 J.C. 8 it was held that the sentencing court was entitled to have regard to the accused's previous court appearances, as set out in a report which the court was required to obtain for the purpose of determining the appropriate disposal, even if they had not been the subject of notice by the Crown.

In the present case the report in which the conviction dated 19 February 1996 was disclosed had presumably been obtained with a view to the requirements of section 204(2) and 2(A) of the 1995 Act being satisfied. The sentencing judge was accordingly entitled to have regard to that information in connection with his determining what was the appropriate disposal. What the report stated in regard to the appellant's character, including the conviction dated 19 February 1996, was relevant not merely to the question whether a custodial disposal was the only appropriate one, but also to the length of any custodial sentence. There was no question of that conviction being treated as an aggravation and hence as increasing the retributive element of the sentence. It was, however, relevant to that aspect of his sentence which was concerned with the risk of his re-offending and hence with the protection of the public.

What we have said about the use made of information as to a conviction which is contained in a social enquiry report is subject, of course, to considerations of fairness to an accused who should be afforded the opportunity of stating whether the conviction is admitted and challenging the prosecutor's endeavour to establish it. No question of this sort arises in the present case.

So far as the arguments presented to us in the present appeal are concerned, we are entirely satisfied that it was appropriate for the sentencing judge to give weight to the fact of the conviction dated 19 February 1996. He was fully entitled to reach the view that the appellant constituted a threat to the public, having regard to the similar nature of the offending, and the fact that it had been recent. While this offending did not take place over such an extended period as the earlier offences, the fact that the appellant had continued to offend in this way demonstrated the need to provide protection to the public. In any event even if we had confined our attention to the question of whether a sentence of nine years imprisonment would have been appropriate for the whole offences comprised in both indictments, we would have been disposed to the view that it was not excessive. In these circumstances we consider that the main points which Mr. Shead sought to put forward on behalf of the appellant were not well-founded.

Mr. Shead submitted as a subsidiary point that the sentencing judge should have backdated the sentence to 13 January 1999. In his report the sentencing judge said that there was no basis for backdating. However, it was for the court to state its reasons for not backdating in accordance with section 210(1) of the Criminal Procedure (Scotland) Act 1995. In the circumstances we see no good reason why the sentence should not be backdated. Accordingly we will quash the sentence imposed by the sentencing judge and re-impose a sentence of six years imprisonment, backdated to 13 January 1999.