APPEAL COURT, HIGH COURT OF JUSTICIARY
Appellant: McCluskey; Capital Defence Solicitors
Respondent: Ferguson QC AD; Crown Agent
"on 19 August 2008 at Atholl Street, Dundee, you THOMAS HENDRY SHANNON, being subject to a sexual offences prevention order granted at Dundee Sheriff Court on 12 June 2008 in terms of the Sexual Offences Act 2003, prohibiting you from inter alia (b) being outwith the supervision of a staff member of any relevant agency appointed by Dundee City Council for the purpose of maintaining supervision of the Defender at any time, did, without reasonable excuse, breach the terms of said order in that you covertly removed yourself from the property in which you and your supervisors were installed whereby you were in Atholl Street, Dundee whilst outwith the supervision of a staff member of any relevant agency appointed by Dundee City Council for the purpose of maintaining supervision of the Defender at any time; CONTRARY to the Sexual Offences Act 2003, section 113(1)(a)".
The plea was tendered at a second trial diet, following three first diets. Having considered social enquiry and psychiatric reports, on 9 April 2009 the sheriff sentenced the appellant to 4 years detention, said sentence being discounted from a starting point of 5 years. The appellant appealed against that sentence by note of appeal lodged on 16 April 2009. It is to the procedural history of that appeal that we must first give attention.
"The sentence imposed is excessive. In particular, the Sheriff's starting point for sentence, namely five years, is excessive. It is submitted that the Sheriff has not placed sufficient weight on:
(a) the nature of th
(b) the fact that the appellant had no directly analogous previous conviction;
(c) the terms of the reports, particularly the forensic clinical psychological report before the court; and
(d) the time spent in custody by the appellant before sentence.
In addition, it is submitted that the Sheriff has not given sufficient discount for the plea of guilty being tendered when it was".
Leave to appeal was initially refused on 16 May 2009 on the following grounds:
"In all the circumstances disclosed in the Sheriff's report and the report by the social workers and the clinical psychologist there is nothing disclosed in the Note of Appeal which provides a basis upon which it could reasonably be argued that the sentence imposed was excessive".
On appeal against that determination, leave
was granted on 10 June 2009. The appeal was heard in part on 28 August and
continued until 2 September to enable agents to provide accurate information
on the licence status of the appellant in respect of an extended sentence which
had been imposed on him on 8 November 2006. There is unfortunately no official
court record of what transpired on 2 September 2009 other than a minute
recording the refusal of the appeal. However, the Advocate depute was able to
advise us that the Crown's minute of 2 September indicated that the court was
advised that the licence had been revoked and the appellant was liable to be
detained in respect of that sentence until 20 January 2012.
"The presiding Sheriff erred in the exercise of her discretion in selecting 5 years detention as the starting point for a custodial sentence in this case. Whilst a custodial sentence was inevitable the presiding Sheriff failed to attach sufficient weight to a number of factors including the following:-
(a) The nature and circumstances of the offence.
(b) The fact that the appellant had no directly analogous previous convictions.
(c) The presiding Sheriff failed to take into account the fact that the incident which forms the subject matter of the Indictment was the first breach of a very demanding order.
(d) The presiding sheriff failed to take into sufficient account the fact that the appellant's contention that he was in the process of executing an ill thought out escape plan was unchallenged by the Crown and that there was no specification by the Crown that the property which he entered was occupied when he entered. Therefore it was difficult to quantify the degree of danger - if any - to which members of the public were exposed.
(e) Standing the appellant's young age and the observations made by Dr Macpherson in his report regarding the future manageability of risk of the appellant the presiding Sheriff erred in concluding that the protection of the public required the appellant to be detained for 5 years as a starting point.
(f) Taking all of the above factors into account the starting point of 5 years detention was excessive. Therefore the ultimate sentence imposed of 4 years detention was excessive."
to the review of previous cases in
the judgment of the court in R v Steven Fenton  EWCA Crim 2156,  1 Cr App R(S) 97 at paragraphs 22 to 24 and the principles
derived therefrom to cases involving sex offender orders, the predecessors of
sexual offences prevention orders, in paragraph 25. The emphasis was on the
sentence reflecting the nature of the breach and being commensurate with or
proportionate to that breach. It did not follow that, where the breach
involved the commission of an offence for which there was a recognised penalty,
the breach should necessarily attract the same or a lesser penalty, but the
related penalty was a significant factor to which the sentencing court should
have regard. He drew our attention in particular to the conclusions from the
review set out at paragraph 25 as follows:
"So to in relation to Sex Offender Orders. If the breach does not involve any real or obvious risk to that section of the public who it is intended should be protected by the Order, a community penalty which further assists the offender to live within the terms of the Order may well be appropriate although repeated breaches will necessarily involve a custodial sentence if only to demonstrate that the orders of the court are not to be ignored and cannot be broken with impunity. Any breach which does create a real or obvious risk to those whom the Order is intended to protect must inevitably be treated more seriously and multiple or repeated breaches may well justify sentences that might otherwise have been considered far higher than any specific criminal offence or conduct would have attracted. That, after all, is the statutory purpose behind the legislation in the first place."
The combination of the high risk of harm that the appellant posed to the public
and the wilful nature of the breach of the order so early in its life entitled
the sheriff to regard the breach as a serious one requiring the imposition of a
lengthy period of custody to punish the appellant for the breach and to bring
home to him the importance of complying with the terms of the order. However in
light of was entitled to select 4 years as a starting point for
the determination of the sentence to be served . In these circumstances we shall
quash the sentence of 4 years detention imposed by the sheriff and
substitute one of 3 years, also with effect from 9 April 2009.