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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Nimmo Smith
Lord Eassie
Lady Smith
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[2008] HCJAC24
Appeal No: XC752/07
OPINION OF THE COURT
delivered by LORD NIMMO
SMITH
in the reference by
THE
SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in
the case of
JASON ALEXANDER JORDAN
Appellant
against
HER MAJESTY'S ADVOCATE
Respondent
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Act: Gillespie; MJS Solicitors, Dunfermline
Alt: McConnachie, QC,
AD; Crown Agents
2 May 2008
Introduction
[1] The Scottish Criminal
Cases Review Commission (the Commission") has decided to refer the appellant's
case to this court in terms of section 194B of the Criminal Procedure (Scotland) Act 1995. The reference gives this court the
opportunity to consider (1) the proper approach to the allowance of a discount
for a plea of guilty to a charge of contravention of a statutory provision in
respect of which a maximum sentence is prescribed by statute and (2) the proper
approach to the imposition of an extended sentence for the purpose of
protecting the public from serious harm from the offender.
The statutory
provisions
The Civic Government (Scotland) Act 1982, section 52
[2] The Civic
Government (Scotland) Act 1982 ("the 1982 Act") provides
by section 52:
"(1) Any
person who -
(a) takes,
or permits to be taken, or makes any indecent photograph or pseudo-photograph
of a child; ....
shall be guilty of an offence under
this section.
(2) In
subsection (1) above 'child' means .....a person under the age of 18; .....
(3) A
person guilty of an offence under this section shall be liable ......
(b) on
conviction on indictment, to imprisonment for a period not exceeding 10 years
or to a fine or to both."
The Criminal Procedure (Scotland) Act 1995
[3] The Criminal
Procedure (Scotland) Act 1995("the 1995 Act") provides
by section 196:
"(1) In determining what sentence to
pass on, or what other disposal or order to make in relation to, an offender
who has pled guilty to an offence, a court shall take into account -
(a) the
stage in the proceedings for the offence at which the offender indicated his
intention to plead guilty, and
(b) the
circumstances in which that indication was given".
(1A) In
passing sentence on an offender referred to subsection (1) above, the Court
shall -
(a) state
whether, having taken account of the matters mentioned in paragraphs (a) and
(b) of the subsection, the sentence imposed in respect of the offence is
different from that which the court would otherwise have imposed; and
(b) if
it is not, state reasons why it is not."
Section 210A of the 1995 Act provides:
"(1) Where
a person is convicted on indictment of a sexual ....offence the Court may, if it
-
(a) intends
in relation to -
(i) a
sexual offence, to pass a determinate sentence of imprisonment; ....
and
(b) considers
that the period (if any) 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, pass an extended sentence on the
offender.
(2) An
extended sentence is a sentence of imprisonment which is the aggregate of -
(a) the
term of imprisonment ('the custodial term') which the court would have passed
on the offender otherwise than by virtue of this section; and
(b) a
further period ('the extension period') for which the offender is to be subject
to a licence and which is, subject to the provisions of this section, of such
length as the Court considers necessary for the purpose mentioned in subsection
(1)(b) above.
(3) The
extension period shall not exceed, in the case of -
(a) a
sexual offence, ten years; ....
(5) The
term of an extended sentence passed for a statutory offence shall not exceed
the maximum term of imprisonment provided for in the statute in respect of that
offence."
By subsection (10) the expression "sexual offence" is defined
as meaning inter alia an offence
under section 52 of the 1982 Act.
The offence
[4] On 8
February 2006
at the High Court in Kilmarnock the appellant pled guilty to a charge in an indictment
brought under section 76 of the 1995 Act in the following terms:
"Between 15 February
2004 and 2
June 2004 at
106
Wedderburn Street, Dunfermline, you did make indecent photographs or pseudo-photographs of
a child: CONTRARY to the Civic
Government (Scotland) Act 1982, Section 52(1)(a) as
amended."
[5] According to
her report to this Court, the sentencing judge was told that, following the
receipt of information, the police obtained a search warrant for the
appellant's premises, from which they removed a computer and various storage
media. Cautioned by the police at that
stage the appellant said he had downloaded indecent images of children. Asked at the police station if he had an
interest in images containing children he said: "I'm a paedophile - let's not
mince words". The Computer Crime
Specialist Investigation Unit of Fife Constabulary carried out an analysis of
the various storage media taken from the appellant's house. They found 8,073 still images and three video
files all containing indecent images of children. A specialist's report showed that images of
an extremely graphic nature had been downloaded. The sentencing judge's attention was drawn to
representative samples. According to the
sentencing judge's report:
"The first related to a batch of 395
images featuring male children from babies to early teens, naked, alone and in
groups. They showed anal sex between
boys and adult males penetrating boys, oral sex and adults or boys urinating on
other boys. The second sample referred
to 5 images featuring a male baby about 1 year old, initially wearing a nappy
then a male hand groping beneath the nappy, the child bending over when naked,
an erect male penis sodomising the child, finishing with an image showing
varying degrees of penetration into the child's anus. The next sample contained 13 images featuring
a male baby of less than 1 year with an adult male inserting a finger in
the baby's anus. Seven of these showed
the adult male's penis being put in the baby's mouth and the male ejaculating
over the baby's face. Three further
images referred to contained pre-pubescent male children aged 6 to 8 trussed up and gagged. Fourteen further images featured a male baby
of 1 to 2 years lying on a changing mat, naked from the waist down, an adult
male lifting the child's penis and directing his own erect penis into the
child's anus before ejaculating over the child's genitals. One of the images also features the child
holding the adult male['s] penis and placing it in his mouth. A movie clip of 3 minutes and 16 seconds
duration showed three young male children aged between 9 and 11 engaged in a naked
enactment of a game involving one of them being captured and caged by the other
two. All of these images were
representative of the total images found on the material. The material had been created between 15
February and 2 June 2004."
The appellant's
background
[6] The appellant
was born on 29 October 1963.
He was brought up in London.
Behavioural problems in childhood led to his being placed in a
residential school. While there he was
the victim of sexual abuse by an older pupil.
Following this he began to take a sexual interest in younger boys. After leaving school he was employed in a
variety of jobs including warehouse work, as a railwayman, as a production
operator and finally as a process engineer.
He led a somewhat solitary lifestyle and formed no adult
relationships. He did however form a
relationship with a work colleague whom he married in June 2004. The marriage was not consummated and they
were subsequently divorced.
Previous convictions
[7] On 11
September 1986 the appellant was convicted at Woodford Crown Court of indecent assault
against two young male children and received a custodial sentence of 18
months. On 31 March
1989 at Wood Green Crown Court he was convicted of gross indecency
against a 10 year old male and was placed on probation for 2 years. On 11 June 1992 at Kirkcaldy Sheriff Court he was convicted of lewd and
libidinous practices and was placed on probation for 3 years. Although only the latter conviction was
listed in the notice of previous convictions, the two earlier ones were
referred to in one of the reports placed before the sentencing judge. It was not submitted that she was not
entitled to take all three previous convictions into account.
Reports
[8] The
sentencing judge obtained reports, including a full risk assessment. These revealed that the appellant represented
a very high risk of re-offending and a high risk of causing harm. The social enquiry report revealed that the
appellant had no empathy with the children featured in the photographs he had
downloaded. This suggested that whilst
describing his sexual preference for young boys to be "sick" he had not so far
responded positively to social work intervention and he himself considered that
he would "always be a risk". A report
from the Community Sexual Offending Group Work Programme revealed that his
sexual interest in children was of longstanding and that he believed that 12
year old boys had the ability to consent to sexual acts and that boys of 5
years old and over would not be harmed by being involved in sexual acts. This report indicated that the appellant was
viewed as being at a very high risk of re-offending and that there was little
prospect of this altering over the foreseeable future as the appellant was felt
not to have the motivation for change.
The report suggested that if a custodial sentence should follow, the
appellant should be placed on a "lengthy licence" on release.
[9] There was
also available to the sentencing judge a report by Dr Gary Macpherson,
Consultant Forensic Clinical Psychologist.
It was prepared at the request of the appellant's solicitors and was
very properly placed before the sentencing judge. In the report Dr Macpherson stated that the
appellant said of his conduct: "I know it is wrong. I am aware of the facts. But I am more interested in satisfying my
sexual need. Basically not giving a damn
about the legal consequences". As
summarised by the sentencing judge, Dr Macpherson's report confirmed that
the appellant's sexual deviation was of long standing. The appellant provided a relatively full
account of his behaviour and made no attempt to minimise any significant aspect
of his previous convictions or the index crime.
It was suggested that this might enhance his ability to engage with
interventions to understand the antecedents of his behaviour and address the
risk of any analogous re-offending.
However this was in the context of an overall risk assessment which
contained other factors suggesting that he remained at a high risk of re-offending. He expressed a range of deviant attitudes
relating to the appropriateness or "educational" value of sexual contact with
boys, including the belief that his viewing of pornography was victimless and
that sodomy on 6 year old males had no harmful effect. (In correspondence with the appellant's
solicitors shortly before the hearing of the present appeal, in which the
question was raised whether the appellant had made the last-mentioned
statement, Dr Macpherson confirmed that his notes were consistent with the expression
by the appellant of a belief that anal penetration of a young male would not
cause any physical pain). The appellant
had maintained to Dr Macpherson, and it was submitted in mitigation to the
sentencing judge, that he made a conscious decision to limit his behaviour to
viewing pornography within the confines of his home as the safest way of
managing his deviation and avoiding contact with boys.
[10] Dr
Macpherson's report included the following conclusions:
"1. I
am of the view that Jason Jordan presents with the following definite risk
factors: sexual deviation; a history of childhood victimisation and
sexual abuse; a history of suicidal
ideation and attempts at self-harm; high
density sex offences; multiple sex
offence types; attitudes that support
sex offending. He presents with the
following partial risk factors: psychopathic traits; and relationship problems.
....
3. May
I respectfully offer an opinion guided by 'structured clinical judgement' of
clinical and empirical risk factors outlined within STATIC 99 and Sexual
Violence Risk-20 (SVR-20) that Jason Jordan presents a high risk of analogous sex offending at this time, in the absence
of any intervention or supervision. That
is to say, the risk of Jason Jordan committing a further sexual offence within
the next ten years on release is significantly
higher than the [35%] average rate of sex offence recidivism in Scotland.
....
6. In
relation to Jason Jordan's risk management when he returns to the community,
the imposition of restrictions in the community and long-term intensive
supervision are an effective and evidence-based method of reducing the
re-offending rates of sex offenders at high risk of re-offending. May I respectfully recommend, in view of
Jason Jordan's high risk of re-offending, that he be subject to long-term
supervision to allow for his continuing intensive supervision and clinical risk
management when he returns to the community.
I would also respectfully recommend that he may be a candidate for
regular and unannounced visits to his place of residence; that he forfeit his right to use computer
equipment; and that he is subject to
electronic tagging or restriction of liberty as part of his risk management (if
this is an option available at the time of his return to the community); and his level of risk should be re-assessed
at regular intervals while supervised in the community."
The original sentence
[11] The sentencing
judge, having considered the foregoing information, decided on 2
March 2006 to
impose an extended sentence of 8 years and 8 months, of which the custodial
term was 4 years and 8 months and the extension period was
4 years. The sentence was backdated
to 8 February 2006. She indicated
that had it not been for the plea of guilty she would have imposed a custodial
term of 7 years.
[12] The appellant
appealed against that sentence. The
principal ground of appeal was that the sentence was incompetent, as the
sentencing judge had taken as the starting point before discount a sentence
which exceeded the statutory maximum. In
her report on the grounds of appeal, the sentencing judge stated that in
imposing the sentence she "overlooked the fact that this would have taken the
whole extended sentence in excess of the maximum for the offence, namely 10
years and to that extent the grounds of appeal are wholly correct". She also stated:
"I concluded that an extended
sentence was necessary in this case with a relatively long extension period
because of the very high risk apparently posed by the [appellant], according to
the various reports before me ...."
[13] Notwithstanding
the concession by the sentencing judge that she had erred in her approach, the Appeal Court refused the appeal. In their Opinion dated 6 June
2006 the
Court, composed of two judges, stated that they did not agree that by taking a
total period of 11 years as a starting point, the sentencing judge had imposed
an incompetent sentence. At
paragraph 6 they stated:
"Whatever may have been the reasoning
of the sentencing judge, in the ultimate result the sentence she imposed did
not contravene the provisions of section 210A(5) of the 1995 Act."
[14] It is in this
situation that the Commission has now decided to refer the appellant's case to
this Court. In its statement of reasons,
the Commission states that it is of the view that a miscarriage of justice may
have occurred because "the sentencing judge erred in her approach by selecting
a 'starting point' for the [appellant's] sentence that exceeded the sentencing
powers provided by section 52 of the Civic Government (Scotland) Act
1982", and that it is in the interests of justice that a reference should be
made because the appellant's sentence had been arrived at through an
incompetent process of reasoning.
The competency of the
original sentence
[15] Before us,
counsel were agreed that the sentence imposed by the sentencing judge was
incompetent, and neither of them sought to support the reasoning in the Opinion
given in the earlier appeal, dated 6 June 2006.
This being so, we can state quite briefly, our reasons for agreeing that
the original sentence was indeed incompetent.
[16] As noted
above, the maximum sentence of imprisonment which may be imposed, on conviction
on indictment, for an offence under section 52 of the 1982 Act is 10
years. The Court may decide to impose
either a determinate period of imprisonment, leading to release on licence in
the usual way, or an extended sentence in terms of section 210A of the 1995
Act. But in neither case may the
sentence exceed a term of 10 years:
section 52(3)(b) of the 1982 Act and section 210A(5) of the 1995
Act.
[17] In Du Plooy v HM Advocate 2005 JC 1; 2003 SLT 1237;2003 SCCR 640, guidance
was given as to the basis of, and scope for, a reduction in a sentence to take
account of a guilty plea; reference may
also be made to Spence v HM Advocate [2007] HCJAC 64; 2007 SLT 1218; 2007 SCCR 592. What the court requires
to do is to decide what sentence imposed in respect of the offence would have
been appropriate had the offender been convicted after trial ("the starting
point"), and then to decide, taking into account the stage in the proceedings
for the offence at which the offender indicated his intention to plead guilty
and the circumstances in which that indication was given, what discount to
allow for such a plea.
Section 196(1A) requires the court to state whether, having taken
account of these matters, the sentence imposed in respect of the offence is
different from that which the court would otherwise have imposed. It follows from this that the starting point
must be a sentence which could competently be imposed for the offence in
question. Where the offence is one of
contravention of a statutory provision, and the statute contains a provision,
as is generally the case, prescribing the maximum sentence which may be imposed
for the offence in question, then the starting point cannot competently be more
than the statutory maximum. Reference in
this regard may be made to the Opinion of the Court in Du Plooy v HM Advocate at
paragraph [18]. Considerations arising
from the provisions of sections 3(3) and 195(1) of the 1995 Act, discussed
in McGhee v HM Advocate [2006] HCJAC 87; 2006 SCCR 712, are not the same
as those which arise here, and that case may be distinguished from the
present. That case was concerned with
the sheriff's sentencing powers for an offence at common law. The starting point selected by the sheriff
was not one which could competently be imposed by him for such an offence, but
it was of course open to him to remit the case to the High Court of Justiciary
for sentence. The issue was, in effect,
whether the sheriff might "short cut" matters and impose a discounted sentence
which lay within his competence. The
court held that the discounted sentence of 5 years imposed by the Sheriff
lay within his sentencing powers in terms of section 3(3) and that "the proper
construction of the subsection [section 195(1)] is that the requirement on
the Sheriff to remit only arises when he holds that any competent sentence
which he can impose is inadequate so that the question of sentence is appropriate
for the High Court": paragraph [6]. In the present case however the limiting
factor is the statutory maximum imposed on the sentence which can be passed by
any court for the offence committed by the appellant.
[18] The sentencing
judge herself acknowledges that, in following the procedure provided by section
196(1A) and in stating the sentence which she took as her starting point before
discount, she took a starting point which was in excess of the statutory
maximum. We are unable to agree with the
decision of the Appeal Court dated 6 June 2006, and we agree with the grounds upon
which the Commission has decided to refer the appellant's case to this
Court. The original sentence therefore
falls to be quashed and a fresh sentence substituted.
The fresh sentence
[19] It was agreed
by counsel that in the circumstances the question of a fresh sentence was at
large for our consideration, and we thought it appropriate to invite
submissions from the Advocate Depute as well as from counsel for the
appellant. Counsel for the appellant
accepted not only that a substantial custodial sentence was required, but also
that an extended sentence was required for the purpose of protecting the public
from serious harm from the appellant.
Where an extended sentence is appropriate, the length of the custodial
term will be dictated primarily by the requirements of retribution and
deterrence, while the length of the extension period will be dictated by the
requirement of public protection. We
propose to consider these two periods separately.
[20] By his own
admission, the appellant made the photographs in question by downloading and
storing them, and did so for his own sexual gratification. The photographs showed sexual abuse of
children, some of them very young, which can only be described as
abominable; and the sexual gratification
derived from them by the appellant as depraved.
The making of such photographs, even in the sense in which the appellant
made his, is not a "victimless offence" since "unless there were people willing
to take into their possession images of this kind, they would not be created in
the first place": Ogilvie v HM Advocate
2001 SLT 1391, at paragraph [6].
The appellant and people like him bear an indirect responsibility for
the sexual abuse by creating a demand for photographs of it and thus for the
commission of the abuse itself. As was
recognised in Ogilvie v HM Advocate, a range of cases may fall
within section 52(1)(a) of the 1982 Act.
At which point within that range a particular offence falls will depend
on a number of considerations, including the total number of photographs and
their classification according to the gravity of the sexual abuse or other
indecency shown in them. Also of
relevance will be the personal circumstances of the offender and any previous
analogous convictions. In the present
case, having regard to the statutory maximum sentence of 10 years, and taking
into account the number and classification of the photographs, the appellant's
personal circumstances and his previous analogous convictions, and such parts
of the reports that were before the sentencing judge as are relevant to the
selection of the custodial term, we agree with the sentencing judge's selection
of a starting point for the custodial term of 7 years' imprisonment. Indeed, counsel for the appellant did not
seek to submit, having regard to the foregoing considerations, that this
starting point was excessive.
[21] It is next
appropriate to consider the question of a discount to take account of the
appellant's plea of guilty. The reason
why we do this at this stage is that it is only appropriate to allow a discount
from the custodial term. It is not
appropriate to allow a discount from an extension period which is required for
the purpose of protecting the public from serious harm from the offender: see the Opinion of the Court in Du Plooy v HM Advocate at paragraph [19]
Indeed where, as here, a court decides that an extended sentence is
required, the length of the extension period should only be determined once the
discounted custodial term has been determined and, moreover, it should, subject
to any statutory maximum, take account of the whole period for which the public
require to be protected from serious harm from the offender, both while he is
in custody and while he is subject to a licence.
[22] In the present
case the appellant pled guilty to an indictment brought under section 76 of the
1995 Act. There was some discussion
before us as to whether he had pled guilty at the earliest opportunity, since
his offer to plead guilty in this way was only made some months after his first
appearance on petition and not long before an indictment would in any event
have been served upon him. Neither of
the counsel who appeared before us was in possession of the full facts. The Advocate Depute said, somewhat
speculatively, that by the time the offer was made most of the investigation
would have been undertaken and the case would have been ready for a report to
Crown Office, so that the utilitarian value of the plea was reduced. Counsel for the appellant suggested that
there might have been some delay because the appellant wished to await the
outcome of the process of classification of the photographs before making the
offer. We can understand that both the
defence and the Crown would wish to await the outcome of that process. It is, however, consistent with Du Plooy v HM Advocate and Spence
v HM Advocate that a plea of guilty
by way of section 76 indictment should normally attract a discount of
one-third. The sentencing judge thought
that such a discount was appropriate, and reduced the custodial term to
4 years and 8 months. We see
no reason, on the information before us, to differ from that approach, and we
shall impose a custodial term of imprisonment of 4 years and
8 months.
[23] We turn
finally to consider the extension period.
In terms of section 210A(3) of the 1995 Act it is generally
provided that the maximum extension period for a sexual offence is 10
years; but, having regard to subsection
5 of that section, and to section 52(3)(b) of the 1982 Act, that general
maximum is replaced by those provisions of the 1982 Act and consequently the
maximum extension period which it is open to us to impose is one of 5 years and
4 months, i.e. the difference between 4 years and 8 months and
10 years. It is clear to us, from
all the material available to us, as summarised above, that the public requires
to be protected from serious harm from the appellant for as long as
possible. We are particularly influenced
in this view by Dr Macpherson's conclusions, which included the sentence in
paragraph 3, already quoted: "[T]he risk of Jason Jordan committing a further
sexual offence within the next 10 years on release is significantly higher than the [35%] average rate of sex offence
recidivism in Scotland". The Advocate
Depute submitted that we should impose the maximum extension period available
to us. Counsel for the appellant sought
to suggest that the custodial term and the extension period should be
considered together and that each should be discounted pro rata to take account of the plea of guilty. For reasons already given, we reject this
approach. She also submitted that, if we
were to impose an extension period greater than that selected by the sentencing
judge, that would increase the appellant's punishment. We reject this submission. The purpose of the extension period is not to
punish the appellant but to protect the public.
Indeed, if the appellant receives
the continuing intensive supervision and clinical risk management envisaged by
Dr Macpherson, this might be of benefit to the appellant by helping him to
avoid re-offending. It is clear to us,
bearing these considerations in mind, that an extension period of 5 years and 4 months
is appropriate in the present case.
Result
[24] For these
reasons we shall quash the original sentence and shall instead substitute an
extended sentence of 10 years, of which the custodial term is 4 years and
8 months and the extension period is 5 years and 4 months. This sentence is backdated to 8 February
2006, as was
the original sentence. Had the appellant
not pled guilty, the sentence would also have been an extended sentence of 10 years,
but the custodial term would have been 7 years and the extension period would
have been 3 years.
