Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2002/72.html
Cite as: 2002 SLT 1116, [2002] ScotHC 72, 2002 SCCR 771, 2002 GWD 22-72

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JISCBAILII_CASE_CRIME_SCOTLAND

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Kirkwood

Lord MacLean

Appeal No: C58/02

OPINION

THE LORD JUSTICE CLERK

APPEAL AGAINST SENTENCE

HER MAJESTY'S ADVOCATE

Appellant;

against

JOSEPH HERBERT MILLBANK

Respondent:

_______

Appellant: The Lord Advocate (The Rt Hon C D Boyd, QC); Crown Agent

Respondent: Burns, QC, Sandison; Aberdein Considine & Co, Aberdeen

5 June 2002

Introduction

This is an appeal by the Crown against a sentence of imprisonment imposed on the respondent at Edinburgh High Court on 10 January 2002. The respondent was indicted for trial on 19 charges, 18 of which were charges of lewd and libidinous conduct against young girls and one of which was a statutory charge of a contravention of section 52(1) of the Civic Government (Scotland) Act 1982 in respect of his having taken and made a quantity of indecent pseudo photographs of children. The respondent pled not guilty to charges 3 and 7 on the indictment, these being two charges of lewd and libidinous conduct against two named complainers on specific dates in 1999 and 2000. He pled guilty to the other charges subject to certain deletions. These pleas were accepted by the Crown.

In view of the gravity of this case and the questions that it raises, I shall quote in full the charges, as amended, to which the respondent pled guilty:

"(1) on various occasions between 1 June 1986 and 30 May 1987, both dates inclusive, at [address], Perth, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Fife Constabulary, Kirkcaldy, handle her private parts, force her to handle your private member and masturbate you and lie on top of her and simulate sexual intercourse;

(2) on various occasions between 1 June 1986 and 30 May 1987, both dates inclusive, [address], Perth, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Fife Constabulary, Kirkcaldy, handle her private parts, force her to handle your private member and masturbate you; ...

(4) between 1 January 2000 and 6 September 2001, both dates inclusive, at [address], Perth, Aberdeen, Elgin, Dundee, Inverness or elsewhere in Scotland, you did take and make a quantity of indecent pseudo photographs of children: CONTRARY to the Civic Government (Scotland ) Act 1982, section 52(1) as amended;

(5) on various occasions between 1 January 2000 and 6 September 2001, both dates inclusive, at Aberdeen, Elgin, Dundee, Inverness and elsewhere in Scotland, you did use lewd, indecent and libidinous practices and behaviour towards girls under the age of 12 years, whose identities are to the Prosecutor unknown, induce them to remove items of their clothing and wear other items of clothing supplied by you, induce them to handle your private member and place same against their head and private parts, induce or force them to place your private member in their mouths and such same, handle their private parts, induce them to expose their private parts and take indecent photographs of them;

(6) between 1 January 2000 and 6 September 2001, both dates inclusive, at [address], Aberdeen, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Grampian Police, Aberdeen, remove her clothing, expose her private parts and chest, expose your private member to her and take indecent photographs of her; ...

(8) between 1 March 2000 and 6 September 2001, both dates inclusive, at [address], Aberdeen, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Grampian Police, Aberdeen, remove her clothing, expose and handle her private parts, expose your private member to her and place same against her private parts, induce her to handle her private parts, expose her chest and take indecent photographs of her;

(9) between 25 May 2000 and 6 September 2001, both dates inclusive, at [address], Aberdeen, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Grampian Police, Aberdeen, induce her to remove her clothing and expose her private parts, expose your private member and take indecent photographs of her;

(10) on 4 September 2000 at [address], Dundee , you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Tayside Police, Dundee, expose your private member to her and repeatedly rub same against her head, induce her to remove her clothing, expose her private parts and induce her to touch same and take indecent photographs of her;

(11) on 4 September 2000 at [address], Dundee, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Tayside Police, Dundee, expose your private member and rub same on her head, induce her to remove her clothing and expose her private parts and take indecent photographs of her;

(12) on 19 April 2001 at [address], Dundee, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Tayside Police, Dundee, expose your private member to her and force her to handle same and take indecent photographs of her;

(13) on 19 April 2001 at [address], Dundee, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Tayside Police, Dundee, expose your private member to her, force her to handle same and take indecent photographs of her;

(14) on 25 May 2001 at [address], Aberdeen, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Grampian Police, Aberdeen and exhibit indecent photographs of her;

(15) on an occasion between 1 June 2001 and 28 July 2001, both dates inclusive, at [address], Aberdeen, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Grampian Police, Aberdeen, remove her clothing and induce her to put on a dress and skirt, expose her private parts, handle her private parts, insert your fingers into her private parts and take indecent photographs of her;

(16) on 23 July 2001 at [address], Aberdeen, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Grampian Police, Aberdeen, remove her clothing, expose her private parts, take indecent photographs of her, handle her private parts, expose your private member to her and place same between her legs;

(17) on 30 July 2001 at [address], Dundee, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Tayside Police, Dundee, expose your private member and force her to handle and kiss same, remove her clothing, expose and handle her private parts and take indecent photographs of her;

(18) on 7 August at [address], Aberdeen, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Grampian Police, Aberdeen, take indecent photographs of her and handle and expose her private parts;

and

(19) on 2 September 2001 at [address], Inverness, you did use lewd, indecent and libidinous practices and behaviour towards [complainer], [date of birth], c/o Northern Constabulary, Inverness, expose your private member and place and rub same in her hair."

For the reasons that I shall give, charges 1 and 2 stood apart from the other charges of lewd and libidinous conduct and charge 4 was the separate statutory charge to which I have referred. In these circumstances the sentencing judge imposed a sentence of 5 years imprisonment in respect of charges 1 and 2 together; a sentence of 2 years imprisonment in respect of charge 4, and, in respect of all the other charges, a sentence of 6 years imprisonment together with an extension period of 10 years in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. He directed that these sentences should be concurrent.

The Lord Advocate confined the appeal to the sentence of 6 years.

The background

The respondent was aged 41 at the date on which he was sentenced. He was a first offender. He was unmarried but had been cohabiting with a partner for about 18 years. He was a self-employed sales representative. His work took him all over Scotland but particularly to the north and north east and to Dundee.

The complainers on charges 1 and 2 were sisters and were nieces of his partner. The offences came to light after the complainers disclosed the incidents to their mother. When confronted by family members, the respondent admitted these offences and agreed to seek help. These incidents were not reported to the police at that time.

The remaining offences on the indictment, other than the statutory offence, had numerous common features. In general, the respondent committed the offences by accosting young girls, winning their confidence and taking them to secluded places in order to photograph them, on their own or with himself, in obscene poses. The victims were all aged between 3 years and 8 years.

The respondent prepared for these offences with careful planning. In the cases referred to in charges 15 and 16, he took with him party clothing for his victims to wear. In at least one case (charge 19) he was able to gain access to the stairwell in a block of flats by getting the complainer to give him the security code.

The respondent's usual method of committing the offences was to remove or pull down the victim's clothing in order to photograph her private parts. In numerous cases he persuaded the victim to expose herself and in some cases to hold open her vagina. In all, 32 girls were involved in these offences. All of these charges, apart from charge 5, involved named victims. Charge 5 was an omnibus charge relating to numerous incidents involving girls whose identities were to the prosecutor unknown, committed between 1 January 2000 and 6 September 2001 in Aberdeen, Elgin, Dundee, Inverness and elsewhere in Scotland.

The respondent used a digital camera by means of which he was able to transfer the photographic images to his laptop computer and from there to compact discs. He was also able with this camera to make short video pictures which showed moving images and recorded sound.

After the events referred to in charge 19 came to light, the police obtained a search warrant, as a result of which they recovered the respondent's digital camera; his laptop computer, which contained 310 obscene photographs; three compact discs containing 125 photographs in all; 30 video pictures and some items of girls' clothing. Some of the photographs were duplicates. The Crown prepared a schedule (Crown Production 42) analysing the contents of the photographs and the video pictures. The analysis specified the actions that took place on each video picture and quoted the words spoken by the respondent or by the girl in question.

The photographs show the girls in various degrading poses. In some cases the respondent has photographed himself with the child with his own penis exposed and in some cases in a state of erection. In the video clips the respondent makes various obscene remarks and suggestions. In one of the clips he attempts to pull the victim's mouth towards his penis and there are signs of revulsion and resistance on the part of the child. In one case, charge 15, he penetrated the child with his fingers. In one case (charge 17) he used some measure of force. I shall not go into further details of these offences.

The Lord Advocate has informed us that four of the families involved have had to move home as a result of the offences and that three others intend to do so. He has also informed us that many of the victims are displaying symptoms such as anxiety, bed-wetting and other behavioural problems. Some have required psychiatric or psychological help.

The sentencing judge's reasons

Before passing sentence, the sentencing judge considered a number of recent cases recorded in Morrison's Sentencing Practice and two recent sentences imposed in the High Court. He says in his Report that he was unable to find any reported comparable case that was out of line with the sentences that he passed. In deciding to impose the sentence appealed against, he took into account the nature and effect of the crimes, public revulsion, the need for punishment and the protection of possible victims. He also took into account the fact that there was "no penetrative sex, no masturbation, no ejaculation" and the fact that the respondent's plea by section 76 letter had avoided the need for a trial. He regarded as an important consideration the opportunity that was available to him, and which he took, to impose an extended sentence. He considered that it was essential to show "a degree of mercy/leniency" to mark the fact that the respondent had been regularly and frequently sexually abused by his alcoholic father and several other adults of both sexes from the age of about 4 to the age of ten. His father had also seriously assaulted him physically when he was six. Finally, the sentencing judge took into account the respondent's expression of remorse.

Submissions by the Lord Advocate

The Lord Advocate submitted that the gravity of this case took it outwith the range of sentences imposed in the previous cases to which the sentencing judge referred. He argued that, having regard to the number and frequency of the offences, the tender ages of the victims, and the nature of the conduct, not least because of the use of stored computer images, the sentence was not merely lenient but unduly lenient. It was therefore one with which the court was entitled to interfere.

The Crown had tendered a separate ground of appeal to the effect that the sentencing judge had erred in declining to view the video pictures, thereby depriving himself of the advantage of viewing a contemporaneous record of some of the crimes. The Lord Advocate did not insist on this ground of appeal. Nevertheless, he invited us in the exercise of our discretion to look at this material along with the photographs produced so that we might have a better appreciation of the depraved nature of the offences.

The submissions for the respondent

Senior counsel for the respondent submitted that the sentence fell within the general range set by previous decisions. It could not be said to be so unduly lenient as to justify the intervention of this court. Furthermore, this case could be distinguished from the previous cases to which the sentencing judge had been referred in that the sentencing judge in this case had available to him the power to impose an extended sentence. The sentencing judge had exercised this power. That made the sentence heavier than a simple period of imprisonment. The sentencing judge had considered all the circumstances. It could not be said that he had exercised his discretion wrongly.

Conclusions
(1) Reference to productions

Every sentencing judge in a case of this kind has a discretion whether or not to look at individual productions in the case. He may think that it is useful to look at productions if it would help him to have a better understanding of the nature of the offences and of their degree of gravity. On the other hand, he may conclude that the specification of the offences in the indictment, amplified by the narrative given by the advocate depute, is sufficient for his purpose.

In this case we have considered it appropriate to refer to the photographs produced by the Crown. We did not look at the video evidence on the view that Crown production 42, the analysis document, adequately sets out what is there to be seen and heard.

(2) The sentence

In my opinion, the sentence imposed by the sentencing judge in this case was unduly lenient (cf. HM Adv v Bell, 1995 SLT 350, at p. 353).

The sentencing judge is always entitled to look to previous sentencing decisions in cases of a similar nature for such guidance as those decisions can give. In general, sentences in previous cases are useful in setting out the general range of sentences imposed for the same crime; but the judge has to exercise his judgment in deciding what guidance those cases give in the circumstances of the case before him. In this part of the process, it is seldom possible to compare like with like; but some general measure of guidance will generally be found.

This is one of the most serious cases of its kind that one could imagine. It is certainly of a different order of gravity from those to which the sentencing judge has referred in his report. In reaching this view, I take into account, first, the number and frequency of these offences and the number of victims involved. If one leaves aside the first two charges, it appears that the remaining offences were committed on average every three weeks or so over a period of about 21 months against about 30 victims, all of them strangers to the respondent.

I also take into account the ages of the girls, some of whom were mere infants. For any adult to induce children so young to participate in such conduct is, in my opinion, a considerable aggravation of what is an already serious offence per se.

I next take into account the fact that in most of the instances the respondent photographed the incidents, either by stills or video pictures, for preservation in his computer and on CDs to be available to him at any time for his own gratification. This, in my view, is simply an extension of the abuse that he had already perpetrated.

Finally, there is the nature of the offences themselves. The facts that I have described need no further comment.

I do not consider the fact that there was no penetrative sex, ejaculation or, except on charges 1 and 2, masturbation is in any way a mitigating factor when one considers the nature of the offences and the general background.

In all such cases the effect on the victim is a material consideration. It is apparent that the offences have already done serious psychological damage to several of the children and it may reasonably be supposed that further damage may emerge over the years. The true extent of the consequences of these offences will never be known.

I think that we have also to take into account the reports that were before the court. These suggest that there is a high risk of the respondent's re-offending and that the prospects for his rehabilitation are not promising.

The sentencing judge took into account mitigating factors relating to the respondent's own misfortunes in life. Such factors should not be overlooked; but in a case such as this, the predominant considerations must be the nature and effects of the offences and the need to impose a sentence that will mark the court's view of the gravity of the case.

Disposal

I propose that we should allow the appeal, quash the sentence of 6 years and substitute a sentence of 10 years with an extension period of 10 years, backdated, like the sentence appealed against, to 6 September 2001.