Appellant: McCluskey; Capital Defence Solicitors

Respondent: Ferguson QC AD; Crown Agent

8 February 2011

[1] On 29 January 2009 at Dundee Sheriff Court the appellant pleaded guilty to the following charge:

"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.

[2] The note of appeal was in the following terms:

"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 thise offence;

(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, Thereafter, on application being made to the High Court under section 107(4) of the Criminal Procedure (Scotland) Act 1995, 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.

[3] The appellant subsequently applied to the Scottish Criminal Cases Review Commission for review of the sentence. That application was based solely on the ground that the sheriff had erred by selecting a sentence discount of only 20%. While there was reference in the application to the fact that the original appeal had been argued on the basis that the sheriff's starting point of 5 years imprisonment was excessive, that particular ground was not maintained. In view of the stage at which the plea was tendered, it is plainly unarguable that the sentence discount was too little. The Commission did not consider that the sentence discount selected might have resulted in a miscarriage of justice, and that issue is not raised in the note of appeal now considered by us. However the Commission did consider the sentence "from a somewhat broader perspective". They concluded that a miscarriage of justice may have occurred as a result of the selection of an excessive starting point for the computation of the appropriate sentence and accordingly referred the case to this court for determination.

[4] The note of appeal subsequently presented is confined to the issue of the starting point for determining the length of the custodial sentence imposed and is in the following terms:

"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."

[5] Before turning to the submissions and the issues raised, it is appropriate that we should outline the highly unusual circumstances in which the offence came to be committed. Prior to the imposition of the order the appellant had three previous convictions. Two, dated 8 November 2006, were convictions in the High Court for assault and assault with intent to rape in respect of which a sentence of 6 months detention and an extended sentence of 5 years and 8 months (comprising a custodial term of 32 months and an extension period of 3 years) were imposed. The third is a Sheriff Court conviction dated 28 January 2008 for indecent assault when a further 18 months detention was imposed. In a comprehensive psychiatric report compiled for the sheriff before she imposed sentence, the appellant was described as a "highly unusual young man" who "appear[ed] almost wholly unable to control his sexual urges" to the extent that the Young Offenders Institution where he was held on the above sentences would put special measures in place if he were to come into contact with female staff members. His choice of victim was said to be indiscriminate. He was also said to have had limited understanding of the consequences of his behaviour and to be socially isolated. The consultant psychologist concluded that he posed a high risk of re-offending. His chance of recidivism was estimated at "significantly higher" than the average for sex offenders, which is 35% within 10 years. The social background report before the sentencing sheriff recorded that he first came to the attention of Childrens Services in 2004 as a result of his highly sexualised behaviour towards pupils and teachers at school and also for his proclivity to break into houses in order to steal women's underwear. He was sent to a residential school, a placement that broke down when he assaulted and assaulted with intent to rape a teacher and female staff member resulting in the High Court conviction referred to above.

[6] It is plain that the issue of how to supervise the appellant when released on licence to ensure the protection of the public was a major problem. A comprehensive risk management plan, compiled as a result of Multi-Agency Public Protection Arrangements (MAPPA), was implemented on his release on licence on 27 June 2008. That plan involved the appellant being accommodated within secure conditions under the supervision of two members of care staff at all times. He was also subject to rigorous supervision and monitoring by social workers and officers from the Offender Management Unit of Tayside Police and participated in a number of offence-focused sessions in a programme designed to address the problems behind his sexual offending. A core element of the plan was the sexual offences prevention order, the breach of which is the subject of this appeal and which prohibited him from being outwith the supervision of staff at any time without reasonable excuse.

[7] On his release on 27 June 2008 the appellant was brought to reside in a flat in Dundee where, on the basis of a shift system, two supervisors were on duty at any given time. He was subject to round-the-clock supervision. Prior to 19 August there were no specific problems in this arrangement. Then at about 2.40 pm on 19 August the appellant took advantage of the brief interruption in concentrated supervision that occurred during the handover by one shift of supervisors to the next. While the two supervisors ending their shift were handing over to one of their colleagues in the kitchen, the appellant made a bid for freedom. However the other incoming supervisor, who was making his way towards the flat, spotted him in the garden of a house opposite attempting to hoist himself in through the window. When that supervisor summoned assistance, he was heard by the appellant who called to him that he was trying to get away because he wanted to be caught and go back into detention. He allowed himself to be led back to the flat.

[8] The principal submission of Mr McCluskey, counsel for the appellant, was that the circumstances of the case did not merit the selection by the sheriff of the maximum available sentence as her starting point. Under reference to the speech of Lord Steyn in R (ex p McCann) v Manchester Crown Court [2003] 1 Cr App R (S) 11, he submitted that there were two aspects to be addressed by the sheriff in imposing sentence for the breach, namely, punishment for breaking the earlier order of the court (and that could include a deterrent element) and a preventive element imposed to protect the public from the kind of behaviour that had led to the granting of the order in the first place. The authorities indicated that there would in some cases be a third element, namely, punishment imposed for the circumstances of the breach, if it could otherwise have been charged as a separate offence, but that did not arise in this case.

[9] Mr McCluskey highlighted features of the offence which, he said, showed that it fell far short of being among the most serious imaginable breaches of a sex offences prevention order. The property to which the appellant had tried to gain entry was apparently unoccupied. No-one was actually at risk. He was easily detected and instantly compliant. All of that supported his stated desire to simply commit an act that would result in his return to detention. It could not possibly be regarded as the most serious breach meriting the maximum sentence.

[10] In support of his submission he relied on both the circumstances of, and the opinion of this court in, Din v HM Advocate 2007 SCCR 299. There the accused had a conviction in 1987 for indecent assault, which resulted in 2 years' probation, and a conviction for two charges of lewd and libidinous practices in 1999, which attracted 12 months imprisonment, and finally a conviction for rape in 2001, for which he was sentenced to 4 years' imprisonment. He was described by the sheriff as a serial sex offender. He was prohibited in terms of a sexual offences prevention order from communicating with or being in the company of a person under the age of 16. In breach of the order he was seen in a vehicle in the street in the company of a child aged 14. The sheriff imposed a sentence of 4 years imprisonment, discounted from 4 and a half years. In modifying the sentence to one of 3 years imprisonment this court stressed the importance of bearing in mind the range of gravity which the offence covers when determining whether a sentence near to the maximum should be imposed. The court considered that the offence fell to be treated as a serious one, but decided that the appropriate starting point was 4 years rather than 4 and a half years.

[11] He relied also on Dunnachie v HM Advocate 2007 SCCR 446 as an example of this court demonstrating that a modest sentence to be served concurrently with another on the same indictment could be appropriate, but readily recognised that the breach in that case was viewed by this court as of a very minor nature.

[12] Mr McCluskey then referred to the consideration given in England to the appropriate disposal in cases of breach of orders made under related provisions, in particular sex offender orders and antisocial behaviour orders under the Crime and Disorder Act 1998. He highlighted in particular to the review of previous cases in the judgment of the court in R v Steven Fenton [2006] EWCA Crim 2156, [2007] 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 too 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 misconduct would have attracted. That, after all, is the statutory purpose behind the legislation in the first place."

[13] Consideration of the authorities relied upon by Mr McCluskey, and the other cases referred to in these authorities, demonstrates first and foremost just how varied can be the circumstances in which breaches of orders, such as sexual offences prevention orders designed to prevent criminal behaviour, can be. However, while every case must be approached according to its own particular circumstances, the nature and degree of the threat or risk posed by the breach is clearly a factor of prime importance in determining the appropriate sentence, and the circumstances of the breach will inevitably have a material bearing on the assessment of that threat or risk. The court should also have regard to the objective of ensuring or enforcing future compliance with the order, the ultimate aim being the protection of the public.

[14] These were all factors to which the sheriff did have regard when imposing sentence. She recognised that in the reports before her the appellant was presented as posing a high risk of harm to the public, and that much work required to be done with him to try to reduce the risk he posed. Since the breach, his licence had been revoked, and in custody he had been undergoing an anger management course; but significantly a decision was awaited on his suitability for the sex offenders' programme within the young offenders institution where he was detained. The sheriff also considered it to be important that the appellant had complied with the order for a relatively short period, and saw that as counterbalancing the limited time that the appellant was at liberty and his compliance on discovery. Whether he simply wanted to be returned to detention or whether he had other aims need not be determined; the fact of the matter is that he poses a major threat of serious harm to the public, and seized an early opportunity to undermine the elaborate arrangements put in place by breaching the order and giving his minders the slip.. 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 the potential for graver breaches, we consider that the sheriff erred by deciding that the starting point for the calculation of the sentence was the maximum available of 5 years. It was inappropriate and excessive to start from such a high point. In our opinion the appropriate starting point was no higher than 4 years. Having regard to the view that the sheriff had formed of the gravity of the offence, we consider that she would have beenwas entitled to select 3 years 6 months4 years as a starting point for the determination of the sentence to be served and to apply a discount of 20%. . In these circumstances we shall quash the sentence of 4 years detention imposed by the sheriff and substitute one of 23 years 9 months, also with effect from 9 April 2009.