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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Kay v. Her Majesty's Advocate [2005] ScotHC HCJAC_48 (15 April 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_48.html
Cite as: [2005] ScotHC HCJAC_48, [2005] HCJAC 48
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Kay v. Her Majesty's Advocate [2005] ScotHC HCJAC_48 (15 April 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Macfadyen Sheriff Principal Bowen, Q.C.
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[2005HCJAC48] Appeal No: XC949/04 OPINION OF THE COURT delivered by LORD MACFADYEN in NOTE OF APPEAL AGAINST SENTENCE by ALAN KAY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Wheatley, Solicitor Advocate; Belmonte & Co.
Respondent: Logan, A.D.; Crown Agent
15 April 2005
[1] The appellant pled guilty at a continued first diet on 15 October 2004 to two charges of contravening section 52 of the Civic Government (Scotland) Act 1982 ("the Act"). Charge 2 was a charge that between 15 September and 6 November 2003 at his home address he took or permitted to be taken or made indecent images or pseudo-images of children, in contravention of section 52(1)(a) of the Act. Charge 3 was a charge that between the same dates at the same place he distributed or showed indecent images or pseudo-images of children by means of using the KaZaa file sharing program, in contravention of section 52(1)(b) of the Act. [2] Having obtained various reports, the sheriff, on 18 November 2004, sentenced the appellant to an extended sentence of 57 months, comprising a custodial term of 27 months (backdated to 5 July 2004) and an extension period of 30 months. [3] The appellant lodged a Note of Appeal in terms of which he challenged the length of both the custodial term and the extension period. He did not dispute either that a custodial sentence was appropriate or that an extended sentence was appropriate. [4] In imposing a custodial term of 27 months, the sheriff took as his starting point an assessment that the appropriate sentence would be one of 3 years, but then discounted that period by 25% to reflect the fact that the appellant pled guilty in advance of the trial, had co-operated with the police investigation and had spared the witnesses the need to give evidence. We observe in parenthesis that that seems to us to be a generous discount in the circumstances, but we do not consider it appropriate to re-open that issue. In this appeal the submission for the appellant was that both the net custodial term and the extension period were excessive. [5] In support of his contention that the custodial term was excessive, Mr Wheatley, who appeared for the appellant, referred to the following considerations. There were only 36 files containing pseudo-images of children. None of these were at level 5 of the scale approved in R v Oliver and Others [2003] Cr App R 28. There was no suggestion that the appellant was involved in distributing pseudo-images for financial gain. The appellant had no analogous previous convictions. In the light of these considerations, it was submitted, a shorter custodial term would have been appropriate. [6] In relation to the extension period, Mr Wheatley submitted that its length was excessive, having regard to the assessment expressed in the Community Intervention Service Assessment Report that the appellant presented a low risk of re-offending and a low risk of harm to children. [7] In our opinion, it cannot be said that the custodial term imposed by the sheriff was excessive. This is a case to which the provisions increasing the maximum sentence from three years to ten years imprisonment apply. As the sheriff appreciated, that is a factor to which attention requires to be paid when referring for guidance to Ogilvie v H. M. Advocate 2002 SLT 1391. It is, of course, right to note, as the sheriff did, that of the many pornographic files on the appellant's computer, only 36 involved the depiction of children and thus contravened section 52. On the other hand, the files contained moving picture images. Of the 36 files, 14 were at level 1 (erotic posing with no sexual activity), one was at level 2 (sexual activity between children or solo masturbation by a child), 6 were at level 3 (non-penetrative sexual activity between adults and children), and 15 were at level 4 (penetrative sexual activity between children and adults). All of these files were stored in the appellant's shared folder, and were thus available for distribution to anyone on the network. The search terms used by the appellant indicated that he had specifically sought out images of children. We accept that the appellant did not seek financial gain from distribution of the pseudo-images. We also accept that he had no analogous record of previous offending. We agree with the sheriff in treating his previous convictions as irrelevant. Notwithstanding the two last-mentioned considerations, we are of opinion that, placing the appellant's case appropriately in the scale of penalties now provided for by Parliament, the length of custodial term selected by the sheriff was within the range properly available to him in the exercise of his discretion. We therefore do not consider that we should disturb that aspect of the sheriff's sentence. [8] On the other hand, we are persuaded that the circumstances of the appellant, and the degree of risk which he has been assessed as presenting, do not justify as long an extension period as the sheriff selected. While it was not disputed that an extended sentence was appropriate, we do not find in the sheriff's report any substantial explanation for his selection of an extension period of 30 month. He did observe that the appellant should have the opportunity of being exposed to personal change programmes, but we note that the appellant was considered to be at low risk of re-offending and in consequence unsuitable for the structured two year programme offered by the Community Intervention Service. In these circumstances we consider that an extension period of twelve months would have sufficed. [9] In the result, therefore, we shall allow the appeal, quash the extended sentence imposed by the sheriff, and substitute an extended sentence of 39 months, comprising an unaltered custodial term of 27 months and a reduced extension period of twelve months.