APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: XC1020/03
OPINION OF THE COURT
delivered by LADY COSGROVE
NEIL DUNCAN ROBERTSON
HER MAJESTY'S ADVOCATE
Appellant: Wheatley, Solicitor Advocate; Blacklock Thorley
Respondent:Bell, Q.C.; Crown Agent
17 February 2004 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;
(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".
"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. 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.  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.  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.  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.  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.  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.  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.  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.  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.  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.  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.  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.  Mr. Wheatley submitted that a similar approach should be adopted in this case. He drew attention to Mr. McPherson's view that the appellant's risk of recidivism might be reduced and managed through intensive supervision, and his recommendation that the appellant be subject to long-term supervision on release to allow for his continuing risk management in the community. The importance of effective supervision in the community was also emphasised by the author of the risk assessment from the Change Project. The imposition of a finite sentence with a lengthy extension period was, in these circumstances, the appropriate disposal for this appellant.  In a case of this kind the court requires to take into account the nature and gravity of the offending behaviour and the length of time during which it occurred, the accused's previous criminal record, and his attitude to his offending, including, of course, the question of whether he has acknowledged his guilt. But the court also has an important duty to have regard to the need to protect the public and to impose a sentence that takes proper account of the risk of the accused re-offending.  Before reaching a view as to the likely level of risk of future offending presented by an offender convicted of a sexual offence, the court should obtain both a risk assessment performed by a suitably qualified psychologist and a post conviction social enquiry report, in order to enable an informed decision to be made. It should be noted that section 210A(4) of the Criminal Procedure (Scotland) Act 1995 provides that, before passing an extended sentence, the court is to consider a report by a relevant officer of a local authority about the accused and his circumstances and, if the court thinks it necessary, hear that officer.  At the stage of sentencing the court cannot know whether and to what extent the accused will co-operate with any sex offender programme offered to him whilst he is in custody; likewise, it is impossible to predict the effectiveness of any such programme. In view of this uncertainty, the court should approach the issue of public protection on the basis of the level of risk the offender is assessed as presenting at the time of sentence.  Since the decision for the sentencer will, in a serious case of this kind, often involve a choice between, on the one hand, the imposition of a discretionary life sentence and, on the other, an extended sentence, it is convenient to examine at this point the effect of each of these sentences.  The particular protection afforded to the public by the imposition of a life sentence is that the offender is not released into the community until the Scottish Ministers, on the advice of the Parole Board, are satisfied that it is safe to do so. Further, on his eventual release into the community, a life sentence prisoner remains subject to the conditions of his licence, and is liable to be recalled to prison, for the rest of his natural life.  As this court pointed out in Kelly (per the Lord Justice General (Rodger) at para 4) Parliament, by inserting section 210A into the 1995 Act , provided the courts with a new type of sentence with a view to providing additional protection for members of the public from offenders who have committed violent or sexual offences. Such extended sentences comprise two elements, the custodial term and the extension period. The prisoner must serve the appropriate period of the custodial term, in the same way as any other determinate sentence prisoner. So, if a prisoner is sentenced to four years or more imprisonment, he may be released after serving one-half of his sentence and must be released after serving two- thirds of the sentence. On his release into the community, the prisoner does not remain subject to a licence merely during the balance of the custodial term; rather, he remains subject to a licence until the end of the extension period. The effect is that, if, during that period, he fails to comply with the conditions of his licence, his licence may be revoked and he may be recalled to prison by the Scottish Ministers, with or without consultation with the Parole Board. (Prisoners and Criminal Proceedings (Scotland) Act 1993, section 17). In this connection, we note that the reference in Kelly (at para. 4) to such a prisoner being liable on recall to "serve the balance of the custodial term" is mistaken. He remains liable to be detained in prison until the end of the extension period. He has, however, a right to have his case reviewed on an annual basis by the Parole Board (section 3A(2) of the 1993 Act). As in the case of a life sentence prisoner, his release will be dependent upon the Parole Board being satisfied that his continued detention is not necessary on public protection grounds. The licence conditions and the degree of supervision provided, are, we understand, broadly similar for each category of prisoner.  The approach of this court in Kelly and Crossley was to give effect to what was presumed to be Parliament's intention in providing for extended sentences, namely that a finite sentence should be preferred to a life sentence where the former can provide the necessary protection for members of the public. In both these cases the court was satisfied that the imposition of the maximum extension period would provide that protection. A different view was reached in the case of McGovaney v HM Advocate 2002 SCCR 762, where the appellant, who had been convicted of sexual offences on seven previous occasions, pleaded guilty to a serious sexual offence. The psychologist stated in his report that there was no indication that he had been able to respond positively to treatment in the past. This court decided that, notwithstanding the decision in Kelly, the case was one where, having regard to the appellant's considerable criminal record, the imposition of a discretionary life sentence was appropriate in the public interest.  It is clear, in our view, that each case of this kind must be considered on its own individual facts and circumstances. In particular, the court must consider whether it is likely that a finite sentence can, having regard to the particular circumstances of the offender and his offending behaviour, provide the necessary public protection.  In the present case, we consider that there are several factors that suggest, at this stage, that supervision in the community of the appellant is unlikely to be sufficiently effective in that regard. In the first place, he has a disturbing number of previous convictions for deception; and the circumstances of charge 1 disclose another serious and unpleasant deception which exploited an internet site set up to support families with a particular problem. Having targeted his victim, the appellant progressed his plans by further falsehood - he persuaded the victim's family to believe he had a professional qualification as a psychologist and that he could help them. He inveigled himself into a position of trust and proceeded to groom both the victim and her mother. He has also lied about his employment history. The appellant's past history reveals that throughout his adult life he has moved around the world. He has no family ties, and has no settled roots in any particular community, both factors likely to militate against effective supervision and monitoring. Further, the appellant has admitted that his deviant sexual interest in pre-pubescent females has existed for more than 20 years, but he has taken no steps to address this and still displays a total lack of insight into his offending. He has used the internet both to feed his deviant sexual fantasies by downloading paedophile images and also to further his offending by making contact with a potential victim living in a different part of the country. It is plain that this kind of abuse of the internet is unlikely to be susceptible to supervision, even by the most vigilant supervising officer.  In the light of these considerations, we find we are unable to feel in any way confident about the likelihood of effective monitoring and supervision of this appellant in the community. While he has indicated that he would co-operate with any offence-focused group work in prison as well as supervision of his behaviour on release, we note that he has previously failed to comply with the conditions of a probation order imposed upon him. We also note in this connection that Mr. McPherson indicated that he was not confident that any significant change could be made to the appellant's basic sexual deviation in view of its nature and duration.  The sentencing judge decided that, since the appellant would be entitled to be released two thirds of the way through the custodial period of any finite sentence imposed and would not be subject to any supervision on the ultimate expiry of the extension period, the public would not be sufficiently protected by an extended sentence. We agree with that view. We consider that the risk posed by this appellant is such that a finite sentence cannot provide the necessary protection for members of the public. In our view, the public interest requires that this offender be detained in custody until those responsible for his release are satisfied that he can safely be returned to the community.  The appeal against the sentence of life imprisonment is accordingly refused.