Scottish High Court of Justiciary Decisons

IN CONTINUED NOTE OF APPEAL AGAINST SENTENCE BY KARL LAWSON DODSON v. HER MAJESTY'S ADVOCATE [2000] ScotHC 3 (14th January, 2000)

The appellant is Karl Lawson Dodson who pled guilty at the High Court at Paisley to two charges of abduction and assault, the second charge also containing contravention of Section 5(3) of the Criminal Law Consolidation (Scotland) Act 1995. The trial judge imposed a sentence of 2 years imprisonment in respect of charge 1 and 4 years imprisonment in respect of charge 2, the sentences to run concurrently. The grounds of appeal presented on behalf of the appellant focuses primarily and indeed the matter was presented to us entirely upon the sentence of 4 years imposed by the trial judge in relation to the second charge and focused particularly on the sexual element which is reflected in the amended plea of contravention of Section 5(3) of the said statute.

In opening before us, counsel maintained that the trial judge's approach, to which I shall turn in a moment, proceeded on an erroneous basis, in as much that counsel maintained that the plea was tendered and presented upon the basis that the then accused, now appellant was not aware of the age of the girl in question and indeed, had reasonable grounds for believing her to be over 16, by reason of her demeanour and the fact as will become clear that when the parties first met, both girls who were involved in the charges were soliciting as prostitutes. The Crown before us did not dispute that that was the basis upon which the plea had been tendered as we understand the matter now and we therefore approach the whole question upon the basis that the information before us is that the accused did not know at the time of the commission of the second offence in charge 2 that the girl in question was under the age of 16 and rather had reason to believe that on a reasonable basis that she was over the age of 16, not least for the reasons that I have already given. We therefore approach the matter on that basis.

The background to the matter is that the appellant, while journeying to his home, diverted from the motorway into Glasgow it is said to obtain petrol and some money and encountered the two girls who were undoubtedly soliciting. Counsel before us accepted that the initial reason whereby the appellant took the girls off in his car, was to avail himself of their services, apparently in a car park. However, in the course of the journey, he entertained an account from the girls as to their particular circumstances. It is said he took pity upon them and took them in fact to his home where they remained for some time. There was no sexual contact during that period of occupation of the home. The following day, the day of the offence, the girls requested that the appellant who lived in Bishopton, take them back to Glasgow and he agreed to do so. In the course of that journey it became apparent to the appellant that the girls had robbed him of a number of personal items including money. He stopped the car and the offences that were then committed in relation to abduction and assault were committed against the background that he was enraged by what had happened to him and the conduct of the girls. The assaults in question which are narrated in the plea as amended were accepted by counsel to be entirely reprehensible and of a grave nature. Immediately after the initial completion of the criminal conduct however, the appellant apparently again took pity on the girls and took them back to his house where they stayed for almost another 24 hours. In the course of that 24 hour period, the sexual contact took place as narrated in the second charge, but not in any form of assault but on a consensual basis. The trial judge approached the matter in relation to the latter part of the charge in charge 2 in his report on the following basis:

Before us, counsel maintained that the whole basis of the trial judge's approach as thus narrated, was flawed by reason of his apparent understanding that the appellant knew the actual age of the girl in question. It was also, it was submitted, out of context in respect of what had actually happened, given the facts that the girls had been in the company of the appellant for a total of over 24 hours, that the actual assaults had occurred when he was infuriated by what had happened to him and that ultimately and most importantly of all, there was simply consensual sexual intercourse between the appellant and the second girl which, although technically contravening the terms of the Act because of her actual age, was not, on the basis of the plea presented to us, against the background of knowledge by the appellant of that age. Counsel also maintained before us the consequences to the appellant of his conviction in respect of this matter and not leastly the sexual element. He had lost his job. He was unlikely to obtain another one in the same industry which was the oil industry in which he worked. He had served almost a year of the sentence and had been subjected, as unfortunately frequently happens in relation to this type of conduct that prisoners convicted of sexual offences can suffer in prison. He had had an exemplary army record. He should be regarded as a first offender and all in all, it was submitted that the sentence of 4 years in respect of charge 2 was excessive, both by reason of the background to the circumstances and the erroneous basis upon which it was based.

With this last proposition we agree. We consider that the trial judge, perhaps understandably, undoubtedly proceeded on an erroneous basis in fact in reaching the conclusion he did and that while it is necessary to recognise the gravity of these offences in terms of the assault and to recognise the sexual element in relation to the second charge, we consider that an additional 2 years in that respect is excessive. In these circumstances, there being no appeal presented against charge 1, the sentence in relation to charge 1 stands at 2 years. In relation to charge 2, the sentence of 4 years will be quashed and one of 30 months imposed to run concurrently with the sentence of 2 years in the first charge.

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