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Cite as: [2004] ScotHC 11

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Robertson v. Her Majesty's Advocate [2004] ScotHC 11 (17 February 2004)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Hamilton

Lady Cosgrove

Appeal No: XC1020/03

OPINION OF THE COURT

delivered by LADY COSGROVE

APPEAL

NEIL DUNCAN ROBERTSON

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Wheatley, Solicitor Advocate; Blacklock Thorley

Respondent: Bell, Q.C.; Crown Agent

17 February 2004

[1] The appellant is Neil Robertson who pled guilty at the High Court at Glasgow on 19 June 2003 to charges which, as amended, were in the following terms:

"(1) On various occasions between 1 February 2002 and 12 January 2003, both dates inclusive, at [addresses in Troon and Rosyth], you did use lewd, indecent and libidinous practices and behaviour towards [BL], born 1 July 1994, c/o Strathclyde Police, Ayr, supply her with alcohol, handle her private parts, take photographs of her private parts, compel her to take your private member in her mouth and to lick and suck same, rub your private member against her private parts and simulate sexual intercourse with her, induce her to dance naked in front of a webcam and lick her private parts in front of said webcam, display indecent images to her including inter alia on a computer images of children, put lubricant into her private parts, attempt to insert a vibrator into her private parts, place said vibrator against her private parts, compel her to masturbate you to the emission of semen;

On 27 December 2002 at [address in Troon] you did make an indecent photograph or pseudo-photograph of [BL], born 1 July 1994, c/o Strathclyde Police, Ayr: CONTRARY to the Civic Government (Scotland) Act 1982, Section 52(1)(a) as amended; and

(4) On 23 January 2003 and 18 February 2003 at [address in Troon] you did have indecent photographs or pseudo-photographs of children in your possession: CONTRARY to the Civic Government (Scotland) Act 1982, Section 52A(i) as amended".

[2] The circumstances giving rise to the offences were as follows. The complainer lived with her parents and brothers at the family home at the address in Rosyth contained in charge 1. In September 2001, one of her brothers was diagnosed as suffering from Attention Deficit Hyperactivity Disorder (ADHD) and Asperger's Syndrome. In November 2001, the complainer's mother visited a website on the internet concerning a support group for families with children suffering from Asperger's Syndrome. She posted her own e-mail on this site asking for help and advice.

[3] In January 2002 she received a reply from the appellant, who claimed to be a pilot with Ryanair. This claim was false. He said he suffered from Asperger's Syndrome himself, and had qualifications in South Africa as a psychologist. This was also false. He said that he wished to offer help to parents with children who suffered from ADHD and Asperger's Syndrome.

[4] The appellant and the complainer's mother then began communicating by means of the internet. At this time he claimed to be a psychologist working for an airline. Two or three weeks later the appellant provided his telephone number, and the complainer's mother telephoned him. They began conversing frequently. Towards the end of February 2002, the appellant was invited to the family home in Rosyth where he met the entire family and provided advice on how to deal with the son's problems. In March or April 2002 the appellant stayed with the family for the weekend. During this time it transpired that he was unemployed. He was invited to stay with the family, and stayed there for four or five weeks. By this time an attraction had developed between the complainer's mother and the appellant. Whilst the appellant stayed with the family, he slept in the complainer's bedroom. He still claimed to be involved in the airline and frequently used his laptop computer.

[5] In May 2002 the appellant and the complainer's mother began a sexual affair. She and the complainer regularly stayed overnight at the appellant's house in Troon. They stayed there every second weekend. The appellant continued to stay on occasions at her home in Rosyth. The relationship continued until 11 or 12 January 2003 when the police became involved. Around November or December 2002, when the complainer was 8 years old, the appellant advised her mother that she had been masturbating, rubbing herself against a clothes pole and using her mobile telephone as a vibrator. The appellant went on to suggest that the complainer's mother should provide her with a vibrator which she herself owned, as that would be less likely to cause the complainer injury.

[6] The information provided to the court was that period of the libel (1 February 2002 to 12 January 2003) covered the entire time that the appellant knew the complainer. It was difficult to pin-point exact dates when things happened. Certain dates had, however, been identified when the appellant and the complainer were alone. On 13 December 2002 the appellant baby-sat for the family at their home in Rosyth while the parents attended a Christmas night out. On 24 December 2002 the appellant again baby-sat whilst they were out. Around Christmas 2002 the appellant showed the complainer's mother a pink vibrator which he stated he had purchased for the complainer, but he said that he would not let her use it without her mother's permission. The complainer's mother subsequently said that she did not find any of the appellant's behaviour sinister, but accepted it as what she called "Neil's logic". On 27 December 2002 the complainer was allowed to travel to Troon alone with the appellant to stay for a week's holiday.

[7] On 1 January 2003 the complainer told her mother that she had been drunk the night before, having a drunk a bottle of Bacardi Breezer. Her mother was angry at this, and spoke to the appellant about it. The complainer was picked up the next day. The complainer and her mother stayed for the last time at Troon on the weekend of 11 and 12 January 2003. By this time the relationship had deteriorated because the appellant insisted that he was prepared to take on only the complainer and none of the male children.

[8] Matters came to light on 7 January 2003, when the complainer approached an assistant head teacher at her school, who described her as looking tired and down. In the course of their conversation, the assistant head teacher became concerned. She contacted the Child Protection Unit in Fife for advice. They became involved on 10 January 2003. On 22 January police officers attended at the family home and indicated that they wanted to interview the complainer. The complainer's mother informed the officers that she had been having an affair with the appellant. The complainer was interviewed but did not disclose any abuse. On 23 January 2003 the complainer informed her mother that she had been sexually abused. She was re-interviewed on 24 January 2003 and described abuse as libelled in charge 1.

[9] In particular, she spoke about the first time, in or about April 2002, when the appellant touched her private parts in a bedroom in her house. The complainer was 7 years old at that time. She described herself as feeling scared. She recalled a similar incident one morning in her house, when the appellant touched her private parts below her clothes. She stated that it happened on most nights when he came over. She spoke about 13 December 2002 and Christmas Eve 2002, when the appellant had her on the webcam and licked her private parts. She also spoke about touching the appellant's private parts and in particular sucking his private parts. She also spoke about him taking photographs of her private parts for his computer. She also stated that he put his private parts near hers and rubbed his private parts against hers. She also said that on two occasions he made her dance naked in front of the webcam. She also spoke of him putting vaginal lubricant on her. The appellant called it "slurpy stuff". He would squirt it on and rub it in. She also spoke of seeing photographs of other children on the computer of an indecent nature. In relation to the vibrator, she stated that the appellant used it on her "flower". He had bought it not long before and had given it to her as a gift. She indicated that it was used on the outside of her private parts. The appellant had tried to put it inside but had been unable to. She said that he used it quite a lot. At New Year she was given a full bottle of Bacardi Breezer, which she drank. She felt dizzy. She spoke, in her own language, of masturbating the appellant, holding his private parts and moving her hand up and down until sperm came out over her hand.

[10] A warrant was obtained to search the appellant's home address. On 27 January 2003, police officers entered his house and detained him. He was shown the warrant and a search took place. A laptop computer was on in the room. It was displaying the words "Win Wash". That is a software programme used to delete files. One of the police officers recognised it as such and switched the computer off. A webcam was recovered in the livingroom. Various drawings were recovered, which the appellant indicated had been done by the complainer. A digital camera was recovered, along with various floppy discs and other computer equipment. A vibrator was recovered from a drawer in a hi-fi unit, along with a vaginal lubricant. South Ayrshire and North Ayrshire Children's Panel application forms were found. The appellant indicated that he was considering applying. The appellant was interviewed but made no admissions. He was not cautioned and charged at that stage. He was advised that his computer would be sent for examination.

[11] Examination of the computer system revealed a picture of a pre-pubescent female from the neck down with a pink vibrator at her vagina. Further examination and enquiries disclosed that the picture was of the complainer. It had been taken on 27 December 2002. This formed charge 3. Various other paedophilic images were found on floppy discs from the appellant's house. He was arrested on 30 January 2003 in connection with the indecent image. He was interviewed and denied knowledge of the image of the complainer, and of the other images on the computer. He was asked if the complainer ever had a vibrator in her possession. He said that she might have, and that she was able to operate his digital camera. He indicated that she might have photographed herself. After the tape was switched off, the appellant asked if he could make a voluntary statement. He then did that, in his own handwriting. In that statement the appellant claimed that it was the child who had initiated their sexual contact, and that he had not forced or coerced her in any way. As an adult, he was aware that what was happening was both wrong and illegal, but he believed she was enjoying what they were doing. He indicated that the statement was given both as an admission of guilt and to ensure that the child was not put through the trauma of a court case. He also said:

"I recognise that I have a very serious problem and also that my own attempts at self-treatment have clearly not worked. I am requesting and pleading for appropriate assistance and therapy in order to avoid any similar event happening at any time in the future from the judicial and/or health system."

The laptop computer was further examined. The police were of the opinion that a large portion of the memory of the computer was missing from the hard drive. Examination however did reveal 55 images of young children in nappies on the internet cache, which is a temporary storage location found in web browser software. Analysis also revealed membership of an internet chat site, 'Butterfly Kisses', which is a pornographic website involving children. A total of 223 image files were recovered from the unallocated space of the laptop. They were all images of young children in nappies. A zip disc was examined. It initially appeared to contain no data. On further examination, however, 347 deleted images were recovered from an area known as the unallocated space. These images were of a paedophile nature. A previously deleted zip file within the disc was identified, which had been corrupted. This file was fixed. When examined, it was found to contain 878 suspected paedophile images and 45 paedophilic movies.

[12] The appellant appeared on petition on 31 January 2003, when he was committed for further examination in custody. He had remained in custody since then.

[13] The schedule of previous convictions tendered by the Advocate depute in respect of the appellant disclosed that he had been convicted on three occasions between 1984 and 1990 at the Crown Court in England of a number of offences of obtaining property by deception, forgery, forgery and counterfeiting, and using a copy of a false instrument. He was also convicted in 1991 at Birmingham Crown Court of an offence of taking a child out of the United Kingdom without the appropriate consent, contrary to the Child Abduction Act 1984. That conviction resulted in a sentence of 12 months imprisonment.

[14] Prior to sentencing the appellant the sentencing judge obtained both a social enquiry report and a risk assessment by Mr. Gary McPherson consultant forensic clinical psychologist at the State Hospital. The social enquiry report was based on an interview with the appellant. He stated that he was an adopted child. He had no contact with his parents or his brother. He had very limited contact with his sister. Both siblings were also adopted and were not blood relatives. The family had moved during his childhood between Scotland, Africa and England. He recounted having attended various schools and universities. He claimed to have a degree in psychology from the University of South Africa. He later stated that he had not studied clinical psychology and had no experience of practice. He said that he had married in Africa in 1995 but had been divorced in 1997. There was one child of the marriage, with whom the appellant had no contact. He said that since completing his education he had moved around the world, working in services related to the aircraft industry. He had worked in England, Nigeria, Canada, South Africa and Burundi before returning to Scotland in March 2001. He described business ventures centred around the aircraft industry involving considerable amounts of money. He referred to one of his previous convictions, in respect of forgery, as having concerned a £5,000,000 bond. He had returned to Scotland in 2001 with plans to set up an airline company. The business had failed to start. Several investors had already given considerable amounts of money to him, and he used this to meet living expenses. He had no problem with drugs or alcohol.

[15] In relation to his past offending behaviour, the appellant described the child abduction offence as a "favour" for a female friend who required to have her child's passport stamped and validated. The author of the report was unable to understand the scenario described by the appellant. The appellant also said that he had been charged with possessing child pornography in 1995. He said that this led to him seeking assistance for his paedophilic tendencies. He had contacted an independent consultant for sex abusers, but he had not undergone any treatment as the case had been dropped and there was therefore no funding available.

[16] In relation to the current offences, the appellant told the social worker that after making contact with the complainer's mother, he quickly realised that she was an extremely vulnerable woman who had many unresolved issues from her own past. He also viewed her as having fairly serious mental health difficulties. He described how he had been invited to visit the family home and how he afterwards resided in the family home for several weeks. He stated that soon afterwards the complainer's mother had made an overture. The complainer's parents had offered to let him stay with the family. He shared a bedroom with the complainer. The appellant described the complainer to the social worker as attention-seeking and demonstrating sexually overt behaviour. He maintained that the child initiated the sexual contact. He told her that she should not do so because her parents were close by and he was worried about the risk of detection. He wanted sexual contact with the child and therefore asked her if she would like to visit him at his home in Troon. He was clear that he planned this with the sole intention that sexual contact would indeed take place without the child's parents being able to deter or detect it. In describing subsequent events during a stay in November 2002, the appellant referred to the child as leading him to the bedroom, undressing and giving him "the green light" to go ahead. He indicated that he had an encrypter in his computer and a wiper system in place which destroyed files before the police searched his home and computer.

[17] The social worker observed that the appellant's account of the offences demonstrated his elaborate grooming of the complainer and her mother and his manipulation of circumstances to allow him to be alone with the child and abuse her for his own sexual needs and gratification. It was noted that the appellant did not express or demonstrate any form of victim empathy. In relation to the appellant's professed eagerness to accept assistance, the social worker observed that while the appellant indicated that he sought assistance in 1995, he had not pursued any further sources of advice on where he could secure assistance and treatment since then as a non-convicted paedophile. It was possible that his current motivation was fuelled by his forthcoming court appearance.

[18] A risk assessment had also been prepared by another social worker, who was the Project Leader of the Ayrshire Change Project. This report was again based on an interview with the appellant, as well as other information. The appellant told the writer that he had visited a variety of websites which he described as being for dysfunctional families, and that he had left messages on discussion boards. It was through one of these sites that he had made contact with the complainer's mother. He indicated that he had contacted other families on ADHD websites and, in particular, had contacted a woman in Surrey who had visited him with her son. The writer carried out a risk assessment based on an actuarial approach known as Risk Matrix 2000. This involved the measurement of risk of re-offending based on actuarial (static) factors, including number of convictions, age at conviction, type of offence, and the age and gender of victims. Applying this approach, the appellant scored as being a high risk of reconviction of a sexual offence.

[19] Mr. McPherson's findings at interview with the appellant were that he presented as a rather grandiose and haughty individual who appeared unconcerned over the nature of his predicament. The impression formed was that the appellant had no insight into the potential impact of his behaviour on the complainer or her family; he continued to rationalise his offending by claiming that the child initiated sexual contact; and he continued to believe that his behaviour towards the child was based on consent and was not wrong.

[20] Mr. McPherson carried out an assessment of the risk of sex offence recidivism. He completed a review of risk factors using "structured clinical judgment" and the rationale of the Sexual Violence Risk-20 (S.V.R.-20). The S.V.R.-20 includes factors that are widely recognised in clinical practice as having utility in decision-making relating to an individual's propensity to sexually re-offend and represents the professional guidelines for clinical psychologists assessing factors associated with risk for sexual offending. The appellant was assessed as presenting a high risk of sex offence recidivism towards young females. The particular factors identified as increasing the risk of recidivism on the part of the appellant were: that he had had a sexual interest in pre-pubescent females for at least 20 years; that he himself might have been the victim of child abuse; that he had a limited capacity for guilt and displayed no emotion with respect to his offending; that he might be unable to sustain a mature relationship; that he had previous convictions, relating mainly to forgery and including an offence under the Child Abduction Act; that his offending behaviour was consistent with high-density sex offending and multiple sex offence types; that the offending escalated in severity over a relatively short period of time, with clear evidence of grooming the complainer to satisfy his sexual deviation; that he had an almost total lack of insight into his offending behaviour; and that he was unable to appreciate that he had behaved wrongly.

[21] The sentencing judge took account of the two professional risk assessments, each using a different approach, but both reaching the conclusion that the appellant presented a high risk of further sexual offending. He concluded that, in view of that level of risk, a discretionary life sentence was the most appropriate disposal in respect of charge 1. He imposed concurrent sentences of one year and three months imprisonment in respect of the other charges. In terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, he ordered that a period of six years be served by the appellant in custody before the provisions of section 2(4) and 2(6) of the Act should apply to him.

[22] In presenting the appeal, Mr. Wheatley, solicitor advocate for the appellant, challenged only the imposition of the discretionary life sentence. He submitted that that was an excessive disposal having regard to the nature of the conduct described in charge 1 and the fact that the specific incidents mentioned in the Crown narrative occurred within a relatively short period of time towards the end of 2002. Further, the appellant had acknowledged his guilt from an early stage and had accepted that he required to undergo specialist treatment. The absence of any analogous previous convictions was said to be a highly significant factor in a case of this kind. The recommendation in both assessment reports was for the imposition of an extended sentence.

[23] Reference was made in this connection to Kelly v. H.M. Advocate 2000 S.C.C.R. 815, where the appellant who was convicted of a serious sexual offence had been assessed as presenting a high risk of further sex offending and had three previous convictions that involved a sexual element. The court decided that an extended sentence rather than a discretionary life sentence was the appropriate disposal. That approach was followed in the case of Crossley v. H.M. Advocate, 25 November 2003, unreported, where a 28 year old offender who had two analogous previous convictions had targeted his 7 and 10 year old victims by befriending their mothers and had abused them over a period of several months. The appellant in that case had two analogous previous convictions and admitted that he had been sexually abusing young boys since he was 15. In both these cases this court considered that the imposition of the maximum extension period of ten years would provide the necessary protection for members of the public.