Scottish High Court of Justiciary Decisons

Carling v. Her Majesty's Advocate [2002] ScotHC 76 (13 June 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord MacLean Lord Macfadyen	Appeal No: C47/02 OPINION OF THE COURT delivered by LORD MACFADYEN in NOTE OF APPEAL AGAINST SENTENCE by ANDREW ALEXANDER CARLING Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: Shead; Drummond Miller

Respondent: N. Beynon, A.D.; Crown Agent

13 June 2002

1. On 20 December 2001 the appellant pled guilty to three charges on indictment of using lewd, indecent and libidinous practices and behaviour towards youths aged respectively 18, 13 and 14 years. He also pled guilty to a charge of culpably and recklessly causing or permitting the 18 year old youth, whom he was teaching to drive, to drive a car in bizarre circumstances involving indecency on his part, to the danger of the occupants of the vehicle and other road users. All of the offences were committed while the appellant was on bail. The diet was adjourned until 10 January 2002 for the purpose of obtaining various reports.
2. On 10 January 2002 the Sheriff, having heard the appellant's solicitor in mitigation, and having considered the reports which were by then available, imposed a cumulo extended sentence. The custodial term was two years, of which a period of three months was attributed to the bail aggravation. The extension period was three years, the maximum available to him by virtue of section 210A(6) of the Criminal Procedure (Scotland) Act 1995. The Sheriff ordered that the sentence be backdated to 10 October 2001, the date on which the appellant was first remanded in custody in respect of these charges.
3. In presenting the appeal, Mr Shead began by reminding us that on 9 August 2001 at Forfar Sheriff Court the appellant pled guilty to a summary complaint containing one charge of indecent exposure and one charge of reckless conduct. Sentence was deferred until 27 September 2001, on which date the Sheriff pronounced an order putting the appellant on probation for a period of three years, with the conditions that he should not be responsible for children under 16 years of age and that he should attend the Tay Project. The appellant was taken into custody in connection with the matters which are the subject of the present appeal before anything could be done to implement that probation order. Mr Shead asked us to note, however, that nothing had been done to revoke the probation order, and that those responsible for the Tay Project had made contact with the appellant while he was in custody. The position was that the probation order and the condition requiring participation in the Tay Project programme could and would be put into effect on the appellant's release from custody. His present estimated date of release, Mr Shead informed us, was 9 October 2002.
4. Mr Shead's primary submission was that the Sheriff had erred in taking the view that there was no alternative to a custodial sentence. On the contrary, he submitted, it was in the public interest that the appellant's sexual offending behaviour should be addressed through the medium of the Tay Project. That could be achieved by the imposition of a further probation order. Alternatively, if the Sheriff was right in regarding custody as appropriate, Mr Shead's submission was that the period of two years imprisonment was excessive in the circumstances, having regard to various mitigatory considerations to which he referred. In connection with that alternative submission, Mr Shead made it clear that the appellant accepted that, if there was to be a custodial sentence at all, it was appropriate that it should take the form of an extended sentence, and no submission was advanced to the effect that the extension period imposed by the Sheriff was unduly long.
5. In addition to the conviction which resulted in the imposition of the probation order on 27 September 2001, the appellant has two other previous convictions in respect of sexual offences. In 1982, at the age of 17, he was convicted at Dundee Sheriff Court of three charges of lewd, indecent and libidinous practices, and fined £50. In 1984, in the same court, he was convicted on indictment of attempted sodomy, and put on probation for two years. The appellant's sexual interest in young adolescent boys, and the need for him to receive help in addressing his offending behaviour and thereafter supervision to monitor his progress, are well vouched in the reports which were available to the Sheriff, which included, as well as a Social Enquiry Report, an Assessment of the appellant's suitability for participation in the Tay Project programme and a Report by Professor William R Lindsay, a chartered clinical and forensic psychologist.
6. We take the view that in all the circumstances it was open to the Sheriff to conclude that a custodial sentence was required. There were, as the Sheriff acknowledged in his Report, a number of mitigating factors. The information put before the Sheriff indicated that the appellant's behaviour had not had any very serious effect on the complainers. Moreover, the appellant had co-operated with the police, and had pled guilty under section 76 of the Criminal Procedure (Scotland) Act 1995. As a result, the complainers had not required to give evidence, and had not even had to be precognosced. On the other hand, the Sheriff was in our view entitled to take into account the appellant's record and the fact that the imposition of a further probation order would have involved no punishment for the offences with which he was dealing. In addition, the offences before him were committed while the appellant was on bail in respect of the offences which led to the probation order. We are in these circumstances not persuaded that a custodial sentence in the form of an extended sentence was in all the circumstances inappropriate.
7. We do consider, however, that there is merit in Mr Shead's alternative submission. It seems to us that it was not necessary that the custodial term be as long as two years. But for the bail aggravation, we would have taken the view that the appropriate custodial term was one year. Taking account of that aggravation, however, we consider that the appropriate custodial term is fifteen months, of which three months are attributable to the bail aggravation. If the custodial term is reduced to that extent, the practical effect will be that the probation order, the appellant's attendance at the Tay Project, and the extension period of the extended sentence will all come into effect at once, and by those means the positive steps designed to protect the public from any further repetition of the appellant's offending behaviour will begin to be taken.
8. We have accordingly quashed the sentence imposed by the Sheriff and in its place imposed an extended sentence, back-dated to 10 October 2001, comprising (a) a custodial term of fifteen months, of which three months are attributable to the bail aggravation, and (b) an extension period of three years.