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Cite as: [2004] ScotHC 58
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Her Majesty's Advocate v. J.T. [2004] ScotHC 58 (24 September 2004)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Hamilton Lady Cosgrove
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Appeal No: XC1062/03 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL in terms of sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 by HER MAJESTY'S ADVOCATE Appellant; against J. T. Respondent: _______ |
Appellant: Lord Advocate, Crown Agent
Respondent:
M. Scott, Q.C.; Milligan Telford & Morrow24 September 2004
[1] On 6 August 2003 the respondent pled guilty in the High Court at Edinburgh to the following charges:"(2) on 5 December 2002 at [an address in Grangemouth] you did have in your possession indecent photographs or pseudo-photographs of children: CONTRARY to the Civic Government (Scotland) Act 1982, section 52A;
...
(5) on various occasions between 28 August 1998 and 5 December 2002, both dates inclusive, at [that address], you did use lewd, indecent and libidinous practices and behaviour towards [L], born on 28 August 1992, c/o Central Scotland Police, Stirling, and did remove her nightclothes, expose her private parts, pull her legs apart, handle her private parts and take photographic images of her private parts;
(6) on various occasions between 28 August 1998 and 5 December 2002, both dates inclusive, at [that address] you did use lewd, indecent and libidinous practices and behaviour towards [A], born 16 July 1997, your niece, c/o Central Scotland Police, Stirling, and did remove her nightclothes, expose her private parts, handle her private parts, lick her private parts, place your private member against her private parts and take photographic images of her private parts and of your private member against her private parts; and
(7) on an occasion between 28 August 1998 and 5 December 2002, both dates inclusive, at [that address] you did assault [A], born 16 July 1997, your niece, c/o Central Scotland Police, Stirling, and did insert your private member into her private parts, and did rape her".
The respondent's pleas of not guilty in respect of the remaining charges on the indictment were accepted.
The circumstances of the offences
[2] Following enquiries by the Metropolitan Police into the distribution of indecent images of children through the internet, Central Scotland Police obtained a warrant to search an address in Grangemouth where the respondent lived. During the search, which took place on 5 December 2002, police officers found a computer system containing a floppy disc, together with a large number of CD ROMs, floppy discs and computer apparatus. On examination it was found that many of the items of software and hardware contained pornographic images. Many of them had been deleted. After the respondent had disclosed a password an examination of the computer apparatus disclosed the existence of more pornographic images. In total there were 2,880 images of an indecent nature involving children. They included children posing in a sexually explicit manner and there were moving pictures showing sexual abuse of young children, including a female child being raped by an adult male, young children involved in oral sex and children having intercourse with each other. The vast majority of the images had been downloaded from the internet. There was some duplication, in that some of the images appeared in more than one place. Police experts indicated that about 4%-5% of the images appeared to be duplicated. Using specialist techniques and equipment it was possible to recover deleted images. Among the recovered images were images of sleeping girls in bed with their nightclothes removed, exposing their private parts. It was through examination of these images that the events to which charges 5, 6 and 7 relate came to light. [3] L, to whom charge 5 related, was the friend of a daughter of the respondent. She would sometimes stay overnight with her friend at the respondent's house. It became apparent that, while she was sleeping, the respondent conducted himself in the way set out in that charge. During the period to which that charge related L was between 6 and 10 years of age. [4] A, the respondent's niece, would also stay at his house from time to time. During the period to which charge 6 related she was aged between 13 months and 5 years. As in the case of charge 5, she was identified from photographs taken by the respondent. While she was sleeping in bed he conducted himself in the way set out in that charge. [5] In regard to charge 7, the sentencing judge was informed that the Crown had been advised by Professor Busuttil and Dr. Helen Hammond that one of the photographs showed that the respondent's penis had entered into the lower part of the child's vagina, its tip being inside A's labia majora to the extent of 1 cm. The medical opinion was that it was possible that this could have been performed while the child was normally asleep and without the child being wakened. The sentencing judge understood that this degree of penetration would have been very unlikely to cause any pain or injury. [6] It may be noted that no information was placed before the sentencing judge as to the frequency of the offending behaviour to which charges 5 and 6 related, or as to the age of the complainer whom the offence in charge 7 was committed; nor did the sentencing judge make further enquiry on these matters.The initial statements of the respondent
[7] The respondent admitted his offending behaviour in the course of being interviewed by the police. He informed them that he wished he could be taken back a few years so that he could correct his life. He said that he had been fed up over the last few years, that he had got addicted to playing computer games and had started looking at the internet. It was through looking at the internet that he had developed the interest which led him to do what he had done. [8] On 6 August 2003 the sentencing judge had before him a pre-trial social enquiry report and a letter from the respondent. The report stated that on leaving school the respondent had been employed on a farm which was owned by his family and managed by his father. He had lived at home until he was 25 years of age when he went to live with his partner. He married her a year later. They lived in Grangemouth throughout their marriage, which was a good one. He was 43 years of age. He and his wife normally lived together with their three children aged 15, 13 and 11. He was qualified as a welder but also worked part-time on the farm and assisted his sister in her business. He informed the writer that he felt that he had neglected his wife to a certain extent due to the amount of time he had spent working on the farm. At the time of the compiling of the report he had been employed as a welder for the past 10 or 11 years. [9] The report also stated that the respondent indicated that he felt that he had been under pressure for a number of years which he attributed to assisting on the farm in addition to being employed full-time. After the commencement of the criminal investigation into the charges he had attended his doctor with regard to his mental well-being and had been referred to psychiatric services. An appointment was made for February 2003, but he had been unable to attend as by then he had been remanded in custody. During his period on remand he had requested a psychiatric appointment, but this had not taken place. He was currently taking anti-depressants. He contemplated suicide after the beginning of the investigation but promised his family that he would not do that. He did not take drugs and rarely consumed alcohol. His time was primarily spent working.The plea in mitigation
[10] On 6 August 2003 counsel for the respondent pointed out that the pornographic images which had been recovered were not confined to images of children (to which charge (2) related), but included images of adults. The respondent had assisted the Crown by informing them of the identity of the children to whom charges 5, 6 and 7 related. Their faces were not shown in the photographs which had been taken of them. It was obvious to the police that the respondent was remorseful. He had assisted them by giving them the password for the computer apparatus. Prior to their investigations much of the material had been deleted from the computer. [11] Counsel also stated that the respondent had previously led a blameless life. He had no previous convictions. His wife described him as an excellent father. He had a strong sense of duty towards his parents and his sister. He had been under stress for the past 4 or 5 years. Neither the farm nor his sister's business made money. He sought help from his doctor because he realised that what he was doing was wrong. (We should interpolate that it is clear from what counsel submitted to the sentencing judge at the adjourned diet (and from what the respondent in person said to the author of the pre-trial social enquiry report and to Mr. Macpherson) that he sought such help once the criminal investigation had started; that sequence of events also accords with the submissions made to us by Ms. Scott.) He had been unable to obtain psychiatric assistance in prison since he was still on remand. Since the police investigation began he had been physically affected and had lost about four stones in weight. From a relatively early stage in the proceedings, it was understood that the respondent would offer pleas of guilty in respect of some of the charges, and that the complainers would not require to give evidence. Time had required to be taken in order to check if any of the images were pseudo-photographs, and to obtain expert advice as to whether it was correct that the respondent had penetrated A to the extent advised by the Crown experts. The respondent had not thought that he had penetrated her, but he now accepted that he had done so.Report of the clinical psychologist, Mr. Gary Macpherson
[12] In his pre-trial social enquiry report the author stated that, given the limited scope of such a report, he was unable to comment on the charges. He recommended that, should there be a finding of guilty, the court should ask for a full social enquiry report. It was clear that the sentencing judge was aware that in a case of this type he was bound to consider the imposition of an extended sentence. However, he took the view that it would be more useful to obtain a report from a clinical psychologist than from a social worker. In these circumstances he sought a report from Mr. Gary Macpherson, a consultant forensic clinical psychologist, who was provided with a statement setting out the Crown narrative and the plea in mitigation, along with the pre-trial social enquiry report, transcripts of the respondent's police interviews and a copy of a letter which the respondent had written to the court. [13] In his report dated 30 August 2003 Mr. Macpherson stated that the respondent had informed him at interview that he began viewing pornographic images of adult females contained within various internet websites "around three years ago". He explained that he soon began viewing images of teenage girls and latterly pre-pubertal females. He volunteered that he found the images sexually stimulating to the extent that he would regularly masturbate to the material. He would spend extended periods viewing pornographic material on three or four occasions per week. He readily conceded that his behaviour "got out of hand". Mr. Macpherson understood from the respondent that he had disposed of the majority of his "collection" prior to the police investigation. He denied having shared images with other internet users. The respondent also informed him that he had taken indecent photographs of L and A on separate sleepovers at his home. On one occasion he photographed himself "attempting to insert his penis into his niece while she was asleep". [14] Mr. Macpherson then stated in his report:"The clinical and research literature on pornography and offending is clear - no strong link has ever been established between viewing pornography and sexual offending. However, in this specific case, I formed the view that [the respondent's] viewing of pornography compromised his moral boundaries and created conditions that allowed him to offend. He experienced an ever-decreasing satisfaction with viewing adult material and began viewing indecent images of teenagers. He latterly began viewing sites containing pornographic images of pre-pubertal females. Having experienced an ever-decreasing satisfaction with such material he then progressed towards contact offending against the complainers".
Mr. Macpherson also then stated that he gained the impression that the respondent was genuinely remorseful for his offending against the complainers. He made no attempt to justify his actions on any level and appeared to be thoroughly ashamed of his behaviour. He told him that he had been unable to face his wife or children.
[15] At the end of his report Mr. Macpherson set out the following conclusions:"1. I am of the view that [the respondent] does not experience a clinically significant psychological condition or mental disorder and there is no history of any psychological or psychiatric condition other than a period of adjustment and depressed mood reflective of his present circumstances.
2. It is my opinion, based on the actuarial risk assessment using Static 99 (Hanson and Thornton, 1999) and guided by 'structured clinical judgement' and clinical and empirical factors associated with sex offence recidivism outlined within the Sexual Violence Risk-20 (SVR-20; Boer et al 1997) that [the respondent] presents a low risk of future sexual offending.
3. Published research on recidivism rates of sex offenders in the UK suggests that approximately one-third are convicted of a further sexual offence within 10 years 'at risk'. I am of the opinion that [the respondent's] risk of future sexual offending is significantly lower than these estimates.
4. I am of the view that [the respondent's] risk of recidivism may be reduced by his participation in offence focussed group work to increase his level of insight into the antecedents to his offending. The risk of recidivism may also be managed by supervision and monitoring when he returns to the community."
In regard to the clinical risk factors considered by Mr. Macpherson it may be noted that he stated that the respondent's offending behaviour
"suggests a recent history of sexual interests and sexual contact with pre-pubertal females. I reviewed his usual sexual interests and habits however and found no compelling evidence to support a longstanding sexual deviation. He denied ever having experienced periods of hyper-arousal and I understand from him that his wife has been his only sexual partner. His overall attitude towards sexual behaviour bordered on the prudish. I found limited evidence to suggest a long-standing sexually deviant interest in pre-pubertal females and this may reduce the risk of recidivism".
However, under the heading "Multiple Sex Offence Types" he considered the position of individuals who have committed multiple types of sex offences including acts which vary in terms of nature and victim selection, type and degree of contact with the victim, and nature and degree of coercion used. In that regard he observed that, from the information available to him, the respondent's offending behaviour would be consistent with multiple sex offence types in view of the increasing intrusiveness of his behaviour and the crossover from non-contact to contact offending against the complainers. This might increase the risk of recidivism.
The sentencing of the respondent
[16] When the respondent appeared on 3 September 2003 for sentencing, the sentencing judge had before him Mr. Macpherson's report, along with a letter from the respondent's wife and a second letter from the respondent. Counsel for the respondent observed that Mr. Macpherson's report was probably unusual in concluding that the respondent presented a low risk of further offending. She drew attention to the points which Mr. Macpherson had discussed in his report and emphasised that the respondent had shown a reasonable level of insight into the progression of his behaviour, and that there was an opportunity for an offence-focused psychological intervention. She also emphasised that, from an early stage, the respondent had accepted that he had done wrong. He had indicated to the police that he had told his parents and sister what he had done. [17] In sentencing the respondent the sentencing judge stated:"You have pled guilty to very serious sexual offences against children. The background appears to lie in your viewing of pornography on the internet. Although it is often said that there is no link between viewing pornography and sexual offending, in this case there does appear to be a clear connection. The very careful report which I obtained on you from one of Scotland's leading forensic psychologists states that in this case he has formed a view that your viewing of pornography compromised your moral boundaries and created conditions that allowed you to offend. You had experienced an ever decreasing satisfaction with viewing adult material and began viewing indecent images of teenagers and latterly viewing sites containing pornographic images of pre-pubertal females, and then having experienced an ever decreasing satisfaction with simply viewing material you then progressed towards contact offending against the victims.
The report also makes clear how strong your shame and remorse are and that you present a low risk of offending again in the future. I take that into account in sentencing. I also take into account the fact that you have pled guilty, sparing those involved the anxiety of a trial.
I also take into account that you are aged 42 with no previous convictions, though at the same time I have been (sic) taken into account also that the offences were committed over a period of about four years against children who had been entrusted to the care of you and your family.
Charge 7 is also plainly a very serious matter, as it is a charge of rape, although I should perhaps make it clear that it is a charge of rape of an unusual character in that it does not involve full penetration and required expert evidence to ascertain whether or not rape had occurred".
The Note of Appeal
[19] The Lord Advocate appealed against the five year sentence on the ground that it appeared to him that it was unduly lenient In the note of appeal it is maintained that the trial judge "erred in failing to give an exemplary sentence, having regard to the need for deterrence and retribution and to express society's condemnation of the crimes and the gravity of the offences". It is also maintained that he "failed to give due weight to the breaches of trust involved in the offences. This, together with the age and vulnerability of the children at the time the offences were committed, was a significant factor". Other criticisms, to which we will refer later, were also made. [20] In his report to this court the sentencing judge indicates the factors which he regarded as important. He states:"On the one hand, the offences were of a revolting character, and represented an extremely grave breach of trust. At the same time, the sentence had to be selected in the context of a range of cases of this general nature which come before the High Court, many of which involve a larger number of complainers, abuse which is at least equally disgusting... clear evidence of psychological damage, and a higher risk of re-offending. In the present case (unlike many others) the children had not been corrupted into becoming active participants in sexual activity with an adult. There was no suggestion that any psychological damage had occurred or was to be anticipated. The mitigating factors appeared to me to be stronger than one commonly encounters in such cases. The accused was a middle-aged first offender. He appeared to me to have shown genuine and profound remorse, and to have given active expression to that remorse through the assistance he gave to the authorities. I had no doubt that he was suffering intensely as a consequence of his offending and the effects which it had upon his family in particular. I bore in mind that imprisonment can be a particularly severe punishment for sex offenders, as they may be ostracised (or otherwise victimised) by other prisoners. I also attached considerable weight to the respondent's plea of guilty".
In regard to the plea the sentencing judge observed that although it might be said that the Crown case was strong, he would not have regarded a conviction of rape on charge 7 as a certainty. In any event it was important to encourage pleas of guilty in cases of this kind, so that the families involved were spared the anxiety attendant upon a trial. He understood that it had been clear from a relatively early stage that pleas of guilty would be tendered, although it was only during the fortnight before the plea was tendered that the position in respect of charge 7 was clarified by expert advice. In the present case the deletion of the images relevant to charges 5 to 7 prior to any police investigation was a positive sign. The provision of the password and information as to the identification of the children, when the respondent was first interviewed, was another positive sign. The conduct of the defence case thereafter had been consistent with a willingness to co-operate and to acknowledge guilt. The letters written to the court, and the respondent's statements to Mr. Macpherson, also indicated contrition. The sentencing judge said he came to the view that, if the respondent had been convicted of these offences after trial, an appropriate sentence would have been in the region of seven years imprisonment. He decided on a sentence of 5 years in order to make allowance for the plea of guilty and the level of contrition shown. As regards the possibility of the imposition of an extended sentence, he noted that, if a five year sentence were imposed, the respondent would be subject to supervision on licence for a period of two and a half years. He would also remain on the Sex Offenders Register for life. Given the conclusion that he presented a low risk of re-offending, it did not appear to him that the period on licence "would not be adequate for the purpose of protecting the public from serious harm from the offender", as required by section 210A of the Criminal Procedure (Scotland) Act 1995. He therefore concluded that an extended sentence was not appropriate.
[21] The Lord Advocate submitted that the sentence did not take adequate account of the gravity of the respondent's offending, and the need to express society's condemnation of the type of conduct to which the charges related, and have regard to the need for deterrence. The respondent's conduct had involved serious breaches of trust. The words "exemplary sentence" were used in the note of appeal in the general sense of indicating a severe sentence which fully reflected the gravity of the conduct to which it related. It had been used in that sense, for example, in H.M. Advocate v. O'Donnell 1995 S.C.C.R. 745 at page 748D-E. [22] The Lord Advocate pointed out that it was not disputed by the defence that the respondent's offending extended for a period of over four years ending with the date when the police visited his home and took possession of his computer equipment, although the Crown was not able to provide much information as to the frequency of the offending during that period. No information about this had been sought by, or put before, the sentencing judge. As regards the photographs of the individual complainers, he accepted that it was not possible to ascertain whether they related to one, or to more than one, occasion. There was no evidence that the respondent had posted on to an internet site any of the photographs which he had taken. [23] As regards charge 7, there was no precise information as to when this had occurred within the period of over four years which was libelled in the charge. However, a report provided by Dr. Hammond ( to whom we have referred earlier) expressed the opinion that the photographs showed a girl of 3 or 4 years of age. The Lord Advocate emphasised that, while the respondent had not fully penetrated A's private parts with his penis, the crime was nonetheless rape and had been accepted to have been rape. The limited degree of penetration was a factor which could not affect the question whether rape had been committed, although it could be taken into account in mitigation. It was to be noted that in his report the sentencing judge appeared to question whether, having regard to the extent of penetration of the external genitalia, rape had taken place. In the light of what the respondent had said in one of his letters, he also questioned what would be sufficient for the mens rea of rape. The respondent had stated "There was not (sic) attempt to insert or penetrate any part of my body inside [A]". These comments might give a clue as to how the sentencing judge approached penetration, namely by treating it as an aggravation of the lesser crime of lewd, indecent and libidinous practices and behaviour. It should also be noted that Mr. Macpherson recorded in his report that he understood from the respondent that on one occasion he photographed himself "attempting to insert his penis into his niece while she was asleep". The Lord Advocate added that, while there was no suggestion that the respondent's conduct would result in psychological damage to the complainers, it was difficult to rule that out. [24] The Lord Advocate emphasised that Mr. Macpherson's report demonstrated that there had been a progression in the respondent's offending. That was, he said, a significant feature of the present case. So also was the fact that the respondent had photographed the complainers after exposing them and placing his private member against the private parts of the younger complainer and, on one occasion, penetrating them. It was clear that the respondent intended to use his photographs for his own sexual gratification. In the present case there was evidence of a strong sex drive. Mr. Macpherson's report showed sexually deviant behaviour moving up from one plateau to another. There was nothing to show that the intervention of the conviction was enough to stop the respondent from re-offending. Remorse was easy to express. But was it a genuine repentance, or a reaction to having been caught? As regards the effect of imprisonment, this was a factor which applied to all sex offenders. [25] Ms. Scott, who appeared on behalf of the respondent, submitted, in response to these submissions, that the complaint that the sentence was not exemplary was of no relevance to the statutory ground of appeal which the Lord Advocate had invoked, namely that the sentence was unduly lenient. There was no material indicating that in the present case the respondent's offending was of a type which called for an "exemplary sentence". In this connection she referred to the remarks of Lord Justice-General Normand in Blair v. Hawthorn 1945 J.C. 17 at page 20 where he said:"It is sometimes proper for a Court to take into consideration the frequency of particular crimes in the district, and it may be necessary, in order to bring to an end the commission of such crimes, to inflict an exemplary sentence preferably after some warning has been given".
It was not normal in any event for an exemplary sentence to be imposed on a first offender. In the present case the sentencing judge had stated there were unusual features. It was an unusual rape and the nature of the respondent's offending was unusual. The rape had taken place without causing pain or injury, and without the use of force. This was not a case in which an accused had groomed children in preparation for sexually abusing them. As regards the comments in the report of the sentencing judge about rape and the mens rea for rape, they played no part in the sentencing process. Furthermore the Crown had not given notice of any criticism of the sentencing judge in these respects. There was no suggestion that rape had not occurred or that the respondent lacked the necessary intent for that crime. Ms. Scott emphasised that the sentencing judge had clearly recognised the escalation in the respondent's conduct and his breach of trust, which he described as "extremely grave". She also accepted that photography represented an extension of the abuse of the complainers. But, at the same time, it was also important to note that the sentencing judge had no further specification of the offending than was contained in the charges.
[26] The mitigatory features of the present case were also unusual. It was not in dispute that the respondent had shown genuine and profound remorse. This had been recognised by the police, and was recognised by Mr. Macpherson. The respondent had given active expression to his remorse by identifying the complainers; their faces were not shown in the photographs. He had admitted his involvement and voluntarily provided the password for access to his equipment. He had sought help, and he had deleted photographs. At the same time Ms. Scott accepted that she was not able to say whether the police could, by other means, have identified the complainers and gained access to what was contained within the respondent's computer apparatus. The pattern of escalation in the respondent's offending had been interrupted. [27] Ms. Scott emphasised that the onus was on the Crown to demonstrate that the sentence was unduly lenient. This posed a high test to which the Crown should be held. She pointed out, under reference to H.M. Advocate v. Shearer 2003 SCCR 657 at page 662G-663A, that it was difficult to establish that a sentence was outwith the range within which it would be reasonable to select the sentence for the particular case. The court should not interfere with the sentencing judge's careful and powerfully reasoned decision. [28] The Lord Advocate, in submissions which it is appropriate to deal with separately, argued that there was an internal contradiction between Mr Macpherson's finding that there had been a progression in the respondent's sexual deviancy over an extended period of time and his conclusion that he presented a low risk of reoffending. This was an important matter since it was clear that his report had been influential in the views which the sentencing judge had formed about the case. In light of the account which the respondent had given to him he questioned Mr Macpherson's description of the history of the respondent's sexual interests and sexual contact with pre-pubescent females as being merely "recent". He also observed that Mr Macpherson had relied to a substantial extent on the respondent's own account of his behaviour and attitude. The sentencing judge did not have any other point of reference. He submitted that in these circumstances it was inappropriate for him to accept Mr Macpherson's conclusion that the respondent presented a low risk of reoffending without further investigation, such as commissioning a further report from another expert or calling on Mr Macpherson to give evidence to the court, or both. The Lord Advocate also pointed out that the pre-trial social enquiry report had recommended that, in the event of conviction, a full social enquiry report should be obtained. He questioned whether, for the purposes of the consideration of an extended sentence under section 210A of the 1995 Act the pre-trial social enquiry would satisfy the terms of subsection (4). A full social enquiry report would have involved an interview with the respondent and would have provided advice to the Court on the suitability of various forms of disposal. He strongly resisted any suggestion that there was any duty on the Crown on 3 September 2003 to challenge the opinions expressed by Mr Macpherson or the failure to order a full social enquiry report. The Advocate depute who appeared on that occasion had no recollection of seeing the report before the case was called, and would not have expected to do so. [29] The Lord Advocate went further in submitting that Mr Macpherson's report was substantially flawed in its methodology and approach, which substantially reduced its value as a tool for sentencing the respondent. He explained that the conclusions of that report had given rise to such concern that the Crown had obtained reports by Professor DJ Cooke of the Department of Clinical Psychology, Glasgow Caledonian University, and Dr K. R. Ashcroft, chartered psychologist, which he invited the court to take into account. These reports did not provide a risk assessment relating to the respondent, who had not been examined, but contained a critique of Mr Macpherson's report. This raised a question of public policy. If a sentencing judge had been led into error by a report which was fundamentally flawed, this court should be prepared to take other reports into account, otherwise it might be failing in its duty. [30] Ms Scott, in response to these submissions, argued that the criticisms of Mr Macpherson's report which the Lord Advocate had advanced were not relevant to the statutory ground of appeal. There was no suggestion that the sentencing judge had erred in a matter of law. In any event there was no evidential basis for the suggestion that the risk of reoffending had not been adequately assessed or that some other risk was posed by the respondent. It could hardly be suggested that, in face of the professional assessment by a qualified psychologist, whose views were regularly relied on by the court, the sentencing judge should have made his own assessment. [31] Ms Scott added that it was not open to the Crown to appeal against the sentence on the ground that the sentencing judge had not ordered a full social inquiry report. That had no bearing on the statutory ground of appeal. If the Crown sought to criticise the sentencing judge for not ordering such a report, they were under a duty to draw this matter to the attention of the sentencing judge at the time. She submitted, under reference to H M Advocate v Bennett 1996 SCCR 331 and HM Advocate v Donaldson 1997 SCCR 738, that it was for the Crown to ensure that the basis for challenging a sentence on the ground of undue leniency was properly laid in the trial court. Ms Scott also opposed the reading of the reports of Professor Cooke and Dr Ashcroft, submitting that it was not competent for the Crown to found on material which had not been before the sentencing judge, or to present arguments for which no specific basis had been laid before him. There was no statutory authority for this, and it would go against the principal of finality. [32] In view of the public interest in the proper assessment of the risk of reoffending we decided that it was appropriate for us to read these reports, along with a further report by Mr Macpherson which was lodged by Ms Scott and contained his response to the critiques. The Lord Advocate and Ms Scott addressed us in regard to these and other matters. However, as we will explain in the next section of this opinion, it proved unnecessary for us to reach any conclusion about them.Was the sentence unduly lenient?
[33] The sentencing judge provided a full account of his reasons for selecting a sentence of five years imprisonment, and it was not suggested that he had left any material consideration out of account. The question remains, however, whether that sentence was not within the range of sentences which he could reasonably have considered appropriate. In that connection we treat the Lord Advocate's reference to an "exemplary" sentence, though perhaps confusing, as meaning no more than a sentence which is of a suitable severity to mark the very serious nature of the case. [34] The extreme gravity and revolting nature of the respondent's offending are not in doubt. He repeatedly took advantage of the fact that young children were sleeping as guests in his house to expose and handle their private parts while they were asleep, and, in the case of the complainer A, he placed his penis against her private parts and on one occasion used it to penetrate them. Although that penetration may be described as minimal, the law rightly regards unlawful penile penetration to any extent as a grave violation of the physical integrity of the victim. He took photographs for his own sexual gratification. It is true that he did these things without the use of force or causing pain or injury. On the other hand he did them to children who were under his protection and while they were unable to understand or resist what was happening to them. [35] According to the terms of the charges to which he pled guilty, his criminal conduct began about four years prior to the police investigation. It thus appears that his statement to Mr Macpherson at interview in August 2003 that he had begun viewing pornographic images of adult females, which was the way in which his deviant conduct began, "around three years ago" was an attempt to minimise his offending. At the time of the police investigation the respondent had apparently deleted a number of the photographs which he had downloaded from the internet or recorded. On the other hand his offending had become increasingly serious over time. Had it not been for the investigation, this trend may well have continued. There is nothing to indicate that the respondent would otherwise have taken steps to bring his conduct under control. It was when his conduct had been detected that he expressed remorse, cooperated with the investigation and sought medical help. As regards Mr Macpherson's report, the sentencing judge had to consider not only what he said about the risk of the respondent's reoffending but also his description of the development of his offending and the implications as to its increasingly serious nature. The significance of risk from the point of view of the protection of the public must depend not only on the chances of recidivism but also on the seriousness of that reoffending. [36] In his thorough and careful report the sentencing judge drew attention to a number of cases in which this court has required to consider appeals against sentences passed in respect of sexual offending. We heard submissions on these and other decisions from the Lord Advocate and Ms. Scott. As the sentencing judge noted, there is no reported case which is closely comparable to the present one. In most of these cases the issue was whether the sentence was excessive. In the present case it was for the court, applying its collective experience and judgment, to decide whether, in the circumstances of the particular case and against the test in H.M. Advocate v Bell 1995 SCCR 244, the sentence passed was unduly lenient. [37] We reached the conclusion that, when all reasonable allowance was made for mitigatory factors, the gravity of the respondent's offending was such that the five-year sentence was unduly lenient. We reached that conclusion without the need to consider the specific criticisms of the opinion expressed by Mr Macpherson as to the level of risk that the respondent would commit further sexual offences, and hence without reference to the reports of Professor Cooke and Dr Ashcroft.Further reports
[38] In order to assist us in deciding on the sentence which should be substituted for the five-year sentence, the court obtained a full social inquiry report on the respondent. In view of the doubts which had been expressed about Mr Macpherson's report, a further psychology report on the respondent, dated 27 May 2004, by Dr Shaun Parsons, chartered forensic psychologist, of the Department of Forensic Psychology, Newcastle upon-Tyne was also obtained. When the final hearing of this appeal took place on 3 September 2004 the court also had before it additional reports obtained by the representatives of the respondent. These were a psychiatric report on the respondent dated 26 August 2004 by Dr Rajan Darjee, honorary specialist registrar in forensic psychiatry, and a report by Professor Derek Perkins, consultant clinical and forensic psychologist, dated 1 September 2004, which contained a critical commentary on the reports of Mr Macpherson and Dr Parsons. [39] Dr Parsons concluded that, although the respondent's responses to psychometric assessment by the revised NEO-PIR test indicated that overall he appeared to have a low level of sexual deviancy, there was significant evidence, in his judgment, that he was in fact attracted to pre-pubertal female children. His description of being attracted to females with shaved pubic areas was a cognitive distortion to allow him to justify, to himself and others, his deviant sexual attraction to pre-pubertal females. Dr Parsons observed that although he showed a clear understanding that his behaviour was wrong, along with considerable remorse, guilt and shame over his offending, it was significant that there were a number of clear cognitive distortions which supported possible future offending. These included his apparent inability to acknowledge that it was possible that he had engineered the situation in which the children were sleeping in the room where he was viewing pornographic images of pre-pubertal children, and his minimisation of the nature and escalation of his offending. He was also concerned that there was evidence of borderline personality traits, although he felt it unlikely that he had borderline personality disorder, and also schizotypal and dependent personality traits. Thus he might prefer solitary sexual activity which he could control, such as viewing images on the internet and/or sexual activity in which the other partner or object of sexual interest was absent or entirely passive. [40] As regards the level of risk of the respondent reoffending, Dr Parsons used the Sex Offender Need Assessment Rating (SONAR). The results suggested that the respondent was of medium risk of offending if he was in the community. That risk would be specifically directed to downloading images of pre-pubertal females from the internet and, should the opportunity present itself, engaging in further offences against pre-pubertal females. However, it was unlikely that he would pose a risk to children in the general population. It was only those with whom he was living, particularly if they were pre-pubertal females. He recommended that in prison the respondent should undertake a cognitive behavioural Sex Offender Treatment Programme. He believed that the respondent would respond well to such treatment and that it might have an effect in reducing his further risk. However, it was his judgment that the respondent had a deviant sexual attraction towards children and that this was extremely resistant to treatment. It was therefore unlikely that any treatment would remove his level of risk entirely. [41] Addressing the court in the light of the whole information which was now available Ms Scott reminded the court of the mitigatory factors in the present case, to which we have referred earlier in this opinion. She stressed that it was clear that the respondent was highly motivated for treatment. As regards the question of the risk of his reoffending, she emphasised that, in the view of Dr Parsons, the respondent would not present a risk to the community at large. She also pointed out that Professor Perkins had treated the validity of Mr Macpherson's approach as equal to that of Dr Parsons. He had noted that they differed in regard to the weight which they gave to the likelihood that the respondent had a longstanding sexual interest in pre-pubescent girls prior to his involvement with internet pornography, and in regard to the extent to which he was denying, minimising or justifying his offending. These factors were reflected in their distinctive structured clinical judgements, using SVR-20 and SONAR respectively. In this connection we consider that it is of some significance that Dr Darjee considered that it was likely that the respondent's primary sexual fantasy was to do with pre-pubescent girls, rather than with adult women without pubic hair. However, whichever was the case, his "disorder of sexual preference" was, in his opinion, an important factor in leading to the offences which he had committed. Ms Scott also suggested that the report of Dr Parsons was affected to some extent by the fact that Dr Darjee had concluded that there was no evidence that the respondent suffered from a personality disorder, or a schizotypal or borderline personality disorder. However, we do not consider that such difference as there was between their opinions affects our view of the present case. What was of significance so far as Dr Parsons was concerned was that the characteristics of the respondent's personality would explain why he would be attracted to solitary sexual activity where he could exercise control. While Dr Darjee was not in full agreement with Dr Parsons, he agreed that the respondent manifested avoidant and dependent features in his personality.Decision
[42] In the light of the reports on the respondent which are before us, and in particular the additional insights which have been provided by Dr Parsons as to the nature of the respondent's sexual deviancy and the risk of his reoffending, it is clear that it would not be appropriate for this court to confine itself to substituting a sentence of the same type as that imposed by the sentencing judge. At the same time we are satisfied that in the present case the circumstances of the respondent and his offending behaviour are not such that only a life sentence would be appropriate in order to provide the necessary public protection. Thus, for example, we distinguish this case from that of Robertson v H M Advocate 2004 SCCR 180, in which there were several factors, referred to by the court at paragraph 33, which suggested, in regard to the appellant in that case, that supervision in the community was unlikely to be sufficiently effective for the protection of the public. In the particular circumstances of the present case it is clear that the appropriate type of sentence which should be pronounced is an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995. That is to say that this is a case in which, in the words of subsection (1), the court "considers that the period ... for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender". It therefore falls to this court to impose a sentence comprising the term of imprisonment, "the custodial term", which the court would have passed on the respondent otherwise than by virtue of that section; and a further period, "the extension period", for which the respondent is to be subject to a licence and which is, subject to the provisions of that section, of such length as the court considers necessary for the purpose of protecting the public from such harm (subsection (2)). As was pointed out in Robertson at paragraph 30, during the extension period the prisoner remains liable to be detained until the end of the extension period, subject to his right to have his case reviewed annually by the Parole Board.
[43] Having regard to the gravity of the respondent's offending and after making all due allowance for the mitigating factors, we consider that the appropriate custodial term is one of 8 years imprisonment. Had it not been for his plea of guilty and his earlier conduct which indicated his acceptance of guilt and cooperation with the police, the appropriate term would have been 10 years. As regards the extension period, we appreciate that at this stage, when the respondent has not yet undertaken any form of sex offender treatment, it is not possible to be sure how matters will develop. However, in the circumstances we consider that an extension period of five years is appropriate. We will accordingly quash the period of five years imprisonment imposed by the sentencing judge and substitute therefor an extended sentence of 13 years, comprising a custodial term of eight years and an extension period of five years. [44] Two matters of practice have arisen in this case which call for comment by this court. First, in a case of this kind, where the possibility of an extended sentence is a live consideration, it will usually be appropriate for the sentencing judge to have before him or her, prior to sentencing, a full post-conviction social enquiry report as well as a risk assessment made by a suitably qualified psychologist. (See Robertson v H.M. Advocate at para. [26]). That is because the former may provide not only an additional insight, in the post-conviction situation, into the appropriate form and length of sentence but also pertinent information from a relevant officer of a local authority as to the prospective management of the offender once released into the community. [45] Secondly, the frequency with which a particular sexual offence has been committed will usually be an important consideration in the selection of an appropriate sentence - with respect both to punishment and to risk. Where, following a plea of guilty, the Crown has information which allows the frequency of the particular offending to be identified, it should lay that information before the court. If it is not immediately volunteered by the Crown, the sentencing judge should make appropriate enquiries of the prosecutor. Similar steps should be taken where the age of the victim at the time of the offence, or any other potentially significant circumstance, is not otherwise evident from the papers. Those acting on behalf of an accused in such circumstances will be expected to be as candid on these matters as their instructions allow. If such steps are not taken, the sentencing judge may proceed on a basis which is less than fully informed and the task of this court on any appeal will be made particularly difficult.Postscript
[46] Before parting with this case we wish to draw attention to the remarks made by the Lord Advocate about press reporting of these proceedings. He emphasised that, while he would not normally be concerned with what was published, in the present case there were some matters of concern about the nature of the press reports. First, there were a number of features of the case which had been seriously misreported. One example was that most reports had given the age of the complainer in charge 7 as being 13 months, whereas the terms of the charge were such that the child could have been anything between that age and five years. The Advocate depute had not provided the court with the estimated age as this was not thought to make any difference. In a potentially emotive case such as the present, that omission was unfortunate. It was not remedied by the sentencing judge making further enquiry. Another example was that, with few exceptions, the rape was treated in the press reports as if it involved full penetration, and hence it might have been inferred that there would have been pain, suffering and internal injuries. Further, it was stated in some newspapers that the respondent had posted photographs of his criminal behaviour on the internet. There was no suggestion that this had happened. Secondly, in regard to press treatment of the sentence imposed in this case, the Lord Advocate stated that, while it was recognised that the press had a vital role to play in reporting proceedings and should be free to criticise judges, the public denigration of a judge could undermine public confidence in the criminal justice system, and might affect the exercise by a judge of his independent judgement, and discourage the recruitment of suitable lawyers to the bench. The matter would be compounded if, as happened in this case, the sentencing judge and his family were personally harassed. [47] We are in full agreement with the remarks of the Lord Advocate, which he very properly made in the public interest. The denigration of a judge betrays gross indifference to the critical importance in a democratic society of the independence of the judiciary, and tends to harm the administration of justice. If a judge's reputation or tenure of office were to depend on whether his decisions met with popular approval, nothing could be more calculated to undermine public confidence in the judiciary, and put at hazard the integrity and independent judgment which the public expect of judges. As regards the relationship of a judge to press coverage it is appropriate to notice passages from the speeches in the House of Lords in R v Secretary of State for the Home Department, ex parte Venables and Thompson [1998] AC 407, where the position of the Secretary of State when exercising a sentencing discretion was under discussion. At pages 489-491 Lord Goff of Chieveley said:" ... events such as this tend to provoke a desire for revenge, and calls for the infliction of the severest punishment upon the perpetrators of the crime. This elemental feeling is perhaps natural, though in today's society there is a tendency for it to be whipped up and exploited by the media. When this happens, it can degenerate into something less acceptable.... I wish to draw a distinction in the present context between public concern of a general nature with regard to, for example, the prevalence of certain types of offence, and the need that those who commit such offences should be duly punished; and public clamour that a particular offender whose case is under consideration should be singled out for severe punishment. It is legitimate for the sentencing authority to take the former concern into account, but not the latter".
In the same case Lord Steyn observed at page 526:
"Plainly a sentencing judge must ignore a newspaper campaign designed to encourage him to increase a particular sentence. It would be an abdication of the rule of law for a judge to take into account such matters".