APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord OsborneLady Smith
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XC434/09
OPINION OF THE COURT
delivered by LORD OSBORNE
in
APPEAL AGAINST SENTENCE
by
ROSS WEBBER
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent: _____________ |
Appellant: Scott Q.C.; Garden, Stirling Burnet, Haddington
Respondent: Bain Q.C., A.D.
17 June 2010
[1] In this appeal, the appellant, Ross Phillip
Webber, takes issue with certain sentences imposed following his conviction on
certain charges in what was a very extensive indictment involving others. The
indictment was essentially concerned with offences against sections 52 and 52A
of the Civic Government (Scotland) Act 1982. There was also an allegation of conspiracy. In
particular, the appellant takes issue with the sentence imposed on him in
relation to charges 25 and 54 in the indictment. Charge 25 was a charge alleging
distribution or showing of indecent photographs or pseudo photographs of
children contrary to the 1982 Act section 52(1)(b), as amended. In respect of
that charge the sentencing judge adopted a starting point of 5 years
imprisonment and, by the application of a discount of 25%, arrived at the
sentence which he imposed of 3 years, 9 months imprisonment. That was ordered
to be an extended sentence, the extension period being 1 year. The other sentence
which has been the particular focus of this appeal is that imposed on charge
54, the conspiracy charge. It was, so far as the appellant was concerned, the
basis of a conviction in relatively limited terms. The period concerned ran
from 27 August to 5 October 2007. So far as the appellant was concerned, the allegation and
conviction was that, at an address in North Berwick whilst acting along with others, who
are not named, but are designated by internet addresses, he attempted to make
arrangements to meet up with them and gain access to children for the purpose
of committing sexual offences against them. In relation to that charge, the
sentencing judge imposed a sentence of 5 years imprisonment, again it was an
extended sentence and the extension period was 1 year. The sentence on charge
54 was ordered to run consecutively to the sentence on charge 25 and no issue
is taken with that feature of the sentence imposed.
[2] On behalf of the appellant it was
emphasised that in relation to charge 25 a relatively small number of
images was involved, the total was 188. A proportion of these, 125, were still
images, and 63 were video images. Our attention was drawn to the nature of the
images, as revealed in the sentencing judge's report, and the extent of the
distribution, which was the subject of agreement in a joint minute. It was
submitted that the number of images was essentially small and that the range of
distribution was small. We accept that submission. Our attention was drawn to
the guideline judgment in the case of HM Advocate v David William
Graham HCJAC 50, as yet unreported, a judgment dated 27 May 2010. It was submitted that
the sentencing judge's starting point in relation to the sentence on charge 25
of 5 years was excessive, having regard to the features of that particular
charge to which we have referred. Other submissions were made in relation to the
sentence on charge 54 and the limited scope of that charge was emphasised and
the unspecific nature of the activities which featured in sub-paragraph (o) of
it.
[3] We have come to think that the sentence
which the sentencing judge imposed on charge 25 was, in all the circumstances
relied upon, excessive. We consider that the starting point of the sentencing
judge was excessive. No criticism was made of the discount which he applied.
We consider that, adopting the same discount for that sentence as did the
sentencing judge, as discounted it should be reduced to 2 years 8 months and
that is our determination in relation to that sentence. We would wish to point
out in taking this course that it is, in large measure, based upon what was
said in HM Advocate v Graham, a guideline judgment, the benefit
of which the sentencing judge did not have, but which of course we must take
into account here now, today.
[4] So far as charge 54 and the sentence
imposed on it is concerned, we have not been persuaded that that sentence was
excessive. The conspiracy was of a pernicious nature and, even taking into
account the limited terms of paragraph (o) of the charge, we consider that the
sentence selected by the sentencing judge was within the range of sentences
reasonably open to him. Therefore we shall not interfere with that charge.
That is the determination of the court.
KW