Appellant: JDM Macara QC, solicitor advocate; Beltrami & Co., Glasgow

Respondent: Small AD; Crown Agent

5 October 2012

1. Facts
[1] On 1 July 2011, at the High Court in Edinburgh, the appellant, who is now aged 52, was found guilty of four offences occurring in 1974 and 1975, when he was aged 14 and 15. The offences involved two young female relatives and were committed when the appellant was babysitting them. They were: first, on various occasions, using lewd, indecent and libidinous practices towards A, aged 6 and 7, by inducing her to get into a bath, washing and drying her naked body and repeatedly inserting his fingers into her private parts; secondly, also on various occasions when A was that age, assaulting and raping her; thirdly, on various occasions, using the same practices towards B, when she was aged 8 and 9; and fourthly, again on various occasions, when B was that age, assaulting and raping her. All four charges involved the use of threats towards the girls to prevent disclosure. The offences were carried out on one girl usually in the presence of the other. On 10 August 2011, the appellant was sentenced to eight years imprisonment.

[2] The appellant had denied the charges and maintained that the allegations were fantasies. The Social Enquiry Report revealed that the appellant had had a particularly unpleasant childhood, involving cruelty on the part of his father. However, he was happy at school and was able to obtain six ordinary grades and three highers. He became an apprenticed engineer and obtained a Higher National Certificate in that subject. In 1992, he joined the Lothian and Borders police, attaining the rank of sergeant. He remained a serving police officer at the time of sentencing.

[3] The appellant married when he was 21. He is still married and has two adult children and one grandchild. He has had what the SER describes as a "blame free and productive" adult life. He has a supportive family and network of friends. His daughter has written a powerful and moving assessment of the impact, which the pursuit of the allegations has had, on both the appellant and the members of his family. As might be expected, the appellant's reputation, no doubt well merited, as a hard-working, devoted and caring husband and father, has all but been destroyed

[4] The SER assessed the appellant as at low risk of general re-offending. However, given the harm which he has caused, a problem exists in relation to his unwillingness to accept responsibility and to address any residual issues. The appellant has attempted suicide on several occasions as the allegations were pursued. He has caused permanent damage to his left wrist.

[5] Victim statement forms have been produced. These detail the effects of the offending on the two complainers. They describe happy childhoods being ended by the appellant's conduct and the fear generated by the offending. They tell of estrangement, isolation and low esteem with continuing anxiety, distress and confusion. Both complainers refer to the adverse effects of the appellant's behaviour on their confidence and, to a degree, consider that it has had an effect on their careers as well as their general lives. On any view, the effects must be regarded as substantial and prolonged.

[6] In selecting the appropriate sentence, the trial judge made it clear that he took all of the circumstances into account. He regarded the offences as occurring when the appellant was in a position of trust. Had the appellant been an adult when the offences had been committed, the trial judge explains that he would have selected a sentence of between 10 and 13 years.

2. Submission
[7] It was submitted that the length of sentence was excessive. Although not focussed in the ground of appeal, it was said that the trial judge had erred in sentencing the appellant on the basis that there had been a breach of trust, given the appellant's age at the time. In addition, it was maintained that the trial judge had erred in his assessment of the weight to be placed on the appellant's youth at the time of offending. The appellant ought to have received the sentence which he would have received had he been convicted of the offences at the time. This would, according to statistics relative to the conviction of children for sexual offending, have resulted in a significantly lower period of custody; perhaps of between two and three years but certainly less than six years.

[8] The Definitive Guidelines on sexual offences, which was produced in 2007 by the Sentencing Guidelines Council of England and Wales, had stressed the need to have regard to the welfare of a child offender when sentencing him (para 1.16, under reference to section 44(1) of the Children and Young Persons Act 1933). It stated (para 1.17) that the youth of an offender must always be a potential mitigating factor, although not always so where the crime is particularly serious (see also para 2.9). Reference was also made to the three dimensions to consider in sentencing for rape in R v Milberry [2003] 1 WLR 546 (Lord Woolf CJ at para 8).

3. Decision

[9] The problem which arises in this appeal is the identification of the correct principles to be employed in sentencing an adult offender for crimes committed when a child. The court accepts that, were the appellant to have been sentenced when he was still a child, any sentence for these crimes would have been significantly less than if the crimes had been committed by an adult. In sentencing a person who is a child, regard must be had to the best interests of that child as a primary consideration (see Hibbard v HM Advocate 2011 SCCR 25, under reference to the United Nations Convention on the Rights of the Child, Article 3.1). Regard must be had also to the desirability of the child's reintegration into society (Article 40). However, in this case, the court is not sentencing a child. Accordingly, these considerations simply do not apply. The court rejects the submission that the sentence to be imposed on an adult, for offences committed when he was a child, should be the same, in terms of time in custody, as would have been imposed upon him if he had still been a child. The sentencing regime in that regard is quite different, as is the custodial regime.

[10] However, equally, the court rejects the idea that the level of sentence should be that which would be imposed for the offence, had it been committed by an adult on a child. The fact that the offender was a child at the time of an offence is a significant factor in determining the level of culpability meriting sentence. In addition, although Lord Woolf CJ, delivering the opinion of the court in R v Milberry [2003] 1 WLR 546, referred (para 17) to taking the same "starting point" in historic abuse cases as in others and stated that the staleness of the offence should only be taken into account "to a limited extent", he was referring to situations where the offender had been an adult when the offences were committed. The court notes that he went on to say that in such cases:

"...the experience is that the offender may be only a danger to members of the family with whom he has a relationship. So this is a dimension that can be taken into account if there is a reduced risk of re-offending".

[11] In selecting the correct period of custody in this case, the appellant must be sentenced as an adult offender, but that sentence must take into account his age, and hence relative immaturity, at the time of the offences (see L v HM Advocate 2003 SCCR 120). In addition, the significance of the thirty seven years or so which has elapsed since the date of the offending, without criminal conduct, is relevant. It indicates that the risk of the appellant re-offending is low. Furthermore, during that period, the appellant has been shown to have made a positive contribution to society. These are important considerations in the sentencing assessment. The court can proceed on the basis that the appellant is to be regarded as a first offender who has, over many years, shown himself to be a responsible member of society. The protection of the public is not now a material consideration as it undoubtedly would have been had the sentencing occurred at or about the time of the offending.

[12] In all these circumstances, the court does not consider that adequate weight was placed by the sentencing judge upon: (a) the appellant's age at the time of the offences; (b) his many years of responsible adulthood; and (c) the lack of any need to include in the sentence an element relative to the future protection of the public. Although of less importance, the court does not consider that it is appropriate to categorise a 14 or 15 year old, who has been asked to babysit relatives, as being, at least in any formal sense, in a position of trust.

[13] The court accordingly concludes that the sentence of eight years imprisonment is excessive and it will substitute instead one of five years imprisonment.