APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lord Menzies	[2013] HCJAC 15 Appeal No: XC80/12   OPINION OF THE COURT   delivered by LORD HARDIE   in   APPEAL AGAINST SENTENCE   by   J G W Appellant;   against   HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellant: Scott QC, solicitor advocate; Capital Defence Lawyers

Respondent: Stuart, AD; Crown Agent

 

20 July 2012

 

Introduction

[1] On 13 October 2011 the appellant appeared at Edinburgh High Court when he pled guilty in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act") to an indictment containing the following charge:

"On 16 March 2011 at [address] you J G W did assault R M, born 24 April 2008, ....punch her on the head, bite and scratch her on the body, seize her by the body, force her legs apart, penetrate her vagina with your fingers, penetrate her anus with your fingers and strike her on the vagina, all to her severe injury".

 

The sentencing judge adjourned the case to enable reports to be prepared and, having heard a plea in mitigation and submissions concerning the application of the Sexual Offences Act 2003 ("the 2003 Act"), he sentenced the appellant on 24 January 2012 to an extended sentence of 10 years, of which the custodial element was 6 years and the extension period was 4 years. In addition he certified that the appellant was subject to the notification requirements of the 2003 Act. The appellant did not dispute the appropriateness or length of the extended sentence and his appeal against sentence was restricted to the sentencing judge's conclusion that the appellant was subject to the notification requirements of the 2003 Act. At the conclusion of the appeal we refused the appeal and stated that we would issue a written opinion explaining the reasons for our decision.

 

Background
[2] In July 2010, when he was aged 23, the appellant met the mother of the complainer and he moved into her home. In January 2011 the complainer's mother obtained a job as a carer which involved shift work. The appellant assisted her by taking the complainer, who was 2 years 11 months at the date of the offence, to and from nursery when her mother was not available to do so. Tensions arose between the appellant and the complainer and their relationship deteriorated.

[3] On 15 March 2011 the complainer's mother was unwell and the appellant agreed to take the complainer to nursery. The child was looking forward to a trip to Dirleton Castle and nursery staff described her as being a normal, happy and likeable little girl during the trip. However, due to inclement weather the trip came to a premature end and arrangements were made for the children to be collected early in the afternoon from the nursery. A nursery assistant observed the complainer immediately begin to cry when she saw that the appellant had come to collect her. The assistant helped the complainer to put on her coat but the complainer's crying had become uncontrollable and she was clearly distressed. She seized hold of the assistant's t-shirt with both hands and repeatedly said "I don't want to go home". The appellant told the child that she was being naughty and would be going home to bed. He said that she was making a fool of him and they then left. On their return home the complainer's mother was still in bed unwell but after the appellant told her how the complainer had reacted at nursery the child's mother arranged for her mother to assist her the following morning by taking her to work and thereafter taking the complainer to nursery.

[4] On 16 March 2011 the complainer's grandmother went to their home and the complainer was in her pyjamas. The complainer was upset and was saying "Me go with you Nana". Her grandmother told the complainer to stay in the house and said that she would collect her once she had taken her mother to work. The complainer was crying when they left and thereafter she was in the sole care of the appellant. When the complainer's grandmother returned about 45 minutes later she got a fright. The complainer was waiting for her at the front door and was crying very hard and rubbing an eye. Her grandmother put her in the car seat and drove towards the nursery. In the car the complainer said "My bum's dirty" and later said "My bum's not been wiped properly". Throughout the journey she cried inconsolably and kept her eyes shut even although she was clearly awake. She was so upset that her grandmother decided not to take her to nursery; instead she drove to her own mother's home which was nearby. Once in the home of her great-grandmother the complainer again mentioned her "bum". Her great-grandmother took off the complainer's tights and pants. There was a bite mark on the complainer's upper thigh and she was bleeding profusely from her vagina. As the complainer still had her eyes closed, she did not see the blood and did not say anything. The complainer's grandmother decided to take the child to the Royal Hospital for Sick Children in Edinburgh and collected the complainer's mother on the way. The complainer kept her eyes shut during the journey and did not open them until 24 hours later.

[5] At the hospital the complainer was so distressed that the medical examination of her had to be carried out under general anaesthetic. The following injuries were found:

(i) significantly swollen and bruised upper lip and frenulum; bruising inside the mouth

(ii) numerous linear abrasions to her lower right leg

(iii) human adult bite mark on inside of her right thigh

(iv) faint red semi-circular bruise on mons pubis

(v) deep midline ragged tear/laceration along the length of the posterior wall of the vagina through the mucosal and muscle fibres. The hymen was disrupted between the 4 and 8 o'clock positions.

(vi) a 2cm linear, superficial laceration lying within the midline between the posterior fourchette margin extending towards the anal verge

(vii) examination of the anus revealed a gaping anus with a superficial tear at the 6 o'clock position at the anal margin.

A consultant paediatric surgeon described the vaginal injuries as "horrific". They required surgical repair by way of 8 stitches. The bite mark, linked to the appellant by a forensic pathologist, was described as having been a "sharp" and "aggressive" bite which would have been painful. Paediatric consultants described the injuries sustained by the complainer as "terrible". One of them had never seen such an acutely traumatised child and the other described the complainer's demeanour prior to examination as being consistent with her being terrified and "shutting the world out". A forensic physician confirmed that the complainer would have been in agony as a result of each and all of her injuries. When she arrived at hospital the complainer was completely withdrawn and presented as a severely abused child. The forensic physician was of the opinion that (a) the injuries to the complainer's frenulum were the result of a forceful punch to the mouth and (b) the digital penetrative injury to her vagina must have been the result of very forceful penetration and would have been very, very painful. In his words, the "hymen is gone" and the injuries were very high up the vagina. They were the worst genital injuries that he had ever seen in a child or adult.

 

Procedural history

[6] On 17 March 2011 the appellant was arrested and appeared on petition at Haddington Sheriff Court on 21 March 2011 in respect of the following two charges:

"(1) On 16 March 2011 at [location] you J G W did sexually assault R M, aged 2 years....., a child who had not attained the age of 13 years, in that you did penetrate her vagina, anus and mouth with your penis, an unidentified object or other means to the petitioner unknown, all to her severe injury;

CONTRARY to Section 20 of the Sexual Offences (Scotland) Act 2009

(2) On 16 March 2011 at [location] you J G W did assault R M, aged 2 years..... and did remove her clothing and bite her on the thigh injury (sic)".

 

The appellant made no plea or declaration and was committed for further examination. Bail was refused but on 24 March he successfully appealed against that decision and was admitted to bail by the High Court of Justiciary. Shortly after the disclosure of the forensic odontology report on 20 June 2011 extensive discussions took place between the Crown and the defence about a possible resolution of the case and the plea ultimately tendered and accepted by the Crown was crystallised in a letter dated 14 September 2011 in terms of section 76 of the 1995 Act.

Submissions on behalf of the appellant

[7] Mr Scott lodged detailed written submissions and supplemented these in his oral submissions at the appeal hearing. Essentially Mr Scott submitted that the sentencing judge had erred in concluding that the assault was an indecent assault rendering the appellant subject to the notification requirements of the 2003 Act (section 80(1)) and that the sentencing judge had also erred in considering, as a default position, that the assault involved a significant sexual aspect. It was acknowledged that the sentencing judge did not have the benefit of the decisions and opinions of the Appeal Court in Hay v HM Advocate [2012] HCJAC 28; 2012 SCCR 281 and five other conjoined appeals, which related to the notification provisions of the 2003 Act. Had the opinions in those cases been available, it was submitted that the sentencing judge "may not have proceeded in the way he did". In support of these propositions Mr Scott relied upon a number of factors.

[8] First, he relied upon the fact that the appellant had originally appeared on a petition containing a charge alleging a contravention of section 20 of the Sexual Offences (Scotland) Act 2009 and a separate charge of common law assault. In the course of discussions with the Crown with a view to resolving the case without trial the Crown had agreed to accept a section 76 offer from the appellant to plead guilty to an aggravated common law assault and to treat the matter as an offence of violence rather than an indecent or sexual assault. The Crown's decision had been the subject of significant discussion within Crown Office and had included the involvement of a law officer. Accordingly the Crown had specifically departed from the indecent or sexual aspects of the original charges against the appellant as they appeared on the petition and had restricted their allegations against the appellant to a specification supporting a serious common law assault. The Crown's ultimate position was that this was an "ordinary assault" and not an indecent assault. When the sentencing judge had indicated that he wished to be addressed by parties on the question of certification under the 2003 Act, the Crown had produced a note of argument confirming that the Crown did not consider the charge to amount to an indecent assault. Moreover, the Crown did not consider that certification was competent in terms of paragraph 60 of schedule 3 of the 2003 Act. The Crown's argument was adopted on behalf of the appellant both before the sentencing judge and before this court. While it was accepted that the attitude of the Crown was not decisive and that the sentencing judge had an element of discretion in determining whether any assault was an indecent assault, Mr Scott submitted that, having regard to the subsequent guidance from the Appeal Court, the sentencing judge had gone beyond the reasonable limits of any such discretion. In short, the sentencing judge had erred in categorising the offence as an indecent assault.

[9] The second ground of criticism of the sentencing judge's decision was that he had concluded that, even if he were wrong that the offence was an indecent assault, there was nevertheless a significant sexual element to the appellant's behaviour. In reaching that conclusion the sentencing judge had erred. In particular he had relied upon the terms inter alia of the social enquiry report which had been prepared in advance of the sentencing diet and in that regard he had erred (Hay v HM Advocate [para 50]). In any event the reports available to the sentencing judge, including the social enquiry report, did not provide a sufficient basis justifying a conclusion that there was a significant sexual element to the offence, particularly in view of the terms of the Crown narrative that such a conclusion was not appropriate in the present case.

 

Discussion

[10] The submissions on behalf of the appellant essentially relied upon the concession by the Crown that the assault to which the appellant had pled guilty was not an indecent assault and that there was no significant sexual aspect to the case. Having said that, Mr Scott acknowledged that despite the position adopted by the Crown, it was within the discretion of the sentencing judge to conclude otherwise, provided the sentencing judge had afforded a proper opportunity to the defence to make submissions about the application of the 2003 Act before sentence was pronounced. No issue was taken in this case that there had been any failure by the sentencing judge to provide the appellant's representatives with such an opportunity. Indeed, it is clear from his report that the sentencing judge gave anxious consideration to the question whether this was an indecent assault and, if not, whether there was a significant sexual element to it. The decisions in Hay v HM Advocate and Thompson v Dunn [2012] HCJAC 27; 2012 SCCR 298, upon which Mr Scott relied, were issued subsequent to the date of sentence of the appellant. While that would not preclude this court from interfering with the appellant's sentence if the subsequent decisions necessarily resulted in the sentence imposed being excessive, we consider that it is important to have regard to the practice which prevailed in formulating charges of indecent assault prior to these decisions. That practice is summarised in the Opinion of the Court delivered by the Lord Justice Clerk (Gill) in Grainger v HM Advocate [2005] HCJAC 11; 2006 JC 141; 2005 SCCR 175; 2005 SLT 364 at paragraph [17] in the following terms:

"Indecent assault is not, in our view, an independent sexual offence. It need not be, and generally is not, libelled as a nomen juris. It is essentially an assault aggravated by indecency in the manner of its commission. That aggravation does not take the assault into a separate category of crime (cf Gordon, Criminal Law, paras.29.04, 29.24). Whether or not an assault is aggravated in this way is to be judged, in our view, by an objective standard (Gordon; McDonald, Criminal Law, pp.117-119). An assault may have the quality of indecency irrespective of the accused's intention or motive".

 

In his opinion in Hay v HM Advocate the Lord Justice Clerk (Gill) commented upon these observations at paragraphs [44] and [45] to the following effect:

"[44] In Grainger v HM Advocate I observed that indecent assault is not an independent sexual offence, that it need not to be libelled as a nomen juris and that the offence was essentially an assault aggravated by indecency in the manner of its commission (para.17). I concluded that where the question of certification of a sexual offence arose in such a case, the trial judge must take the conviction in the terms in which it had been returned by the jury and decide whether, in whole or in part, it disclosed an offence that had the quality of indecency that made it a sexual offence (para.18); and, if he was in doubt on the point, invite submissions from counsel (para.19). That was a case under the previous legislation and in that case the question of fair notice under article 6 was not raised.

[45] We now have to consider that question again, bearing in mind that although indecent assault need not be libelled as a nomen juris, the specific list in the 2003 Act includes 'indecent assault' (Sched 3, para.40). Taking these considerations into account, I have come to the view that where the Crown charge assault and, in the event of conviction, will contend that the assault was an indecent assault, fair notice now requires that the libel should specifically allege indecent assault eo nomine. I shall discuss this further in the appeal of Thompson v Dunn".

 

In Thompson v Dunn the Lord Justice Clerk (Gill) observed at paragraph [9]:

"For the reasons that I have given in Hay v HM Advocate, I consider that if the Crown is insistent that an alleged assault is indecent in nature and should therefore, on conviction, result automatically in notification under paragraph 40, it should give express notice of that in the libel itself. The Crown failed to do so in this case and thereby infringed the appellant's article 6 rights".

 

It will be noted from these quotations that in each of these cases the court was concerned with the situation where the Crown maintained that the assault was indecent in nature and for that reason it expected notification in terms of Schedule 3 to the 2003Act to arise automatically. We are not concerned with such a situation in this case because the position adopted by the Crown, rather surprisingly, was that the assault by the appellant was not an indecent assault. However, as was acknowledged by Mr Scott, that is not an end of the matter as it is always open to the sentencing judge, who has heard the evidence at a trial, or the agreed narrative where a guilty plea has been tendered, of the circumstances of an offence, to conclude that what occurred was an indecent assault notwithstanding any contrary view expressed by the Crown. We anticipate that such a situation will arise very seldom but, if it does arise, it is incumbent upon the sentencing judge to give the representatives of the accused an adequate opportunity to address the court about the application or otherwise of the notification procedure. In the present case there was an adjourned diet prior to which the Crown provided the court with a written note of argument which was adopted on behalf of the appellant. Oral submissions were also made following upon which the sentencing judge reached his decision.

[11] Having regard to the nature and extent of the injuries to the child's vagina and anus caused by digital penetration by the appellant of those parts of the child's body, it is not surprising that the sentencing judge rejected the submissions of the Crown and Mr Scott on behalf of the appellant and concluded that the appellant had committed an indecent assault upon the child. In these circumstances the notification requirements were mandatory.

[12] That is sufficient for our decision in this case and it is not necessary for us to consider the separate question of whether the assault, if not indecent, had a significant sexual element to it. Had it been necessary for us to determine this question, we would have confirmed the views expressed by the sentencing judge that there was a significant sexual element to this crime. We would have reached that conclusion without reference to the reports available to the sentencing judge. The areas of the child's body which were penetrated by the appellant and the extent of that penetration in the context of a deliberate assault were such that the sentencing judge would have been entitled to reach the conclusion that there was a significant sexual element in the attack upon the child had he required to address that issue. In Hay v HM Advocate the Lord Justice Clerk (Gill) observed at paragraph [41] that if the Crown proposed, in the event of conviction, to submit that there was a significant sexual element to an offence, fair notice required notice to be given in the libel. His comments in that regard are confined to the situation where the Crown is seeking to persuade the court that although an offence does not appear on the list of offences for which notification is mandatory, nevertheless notification should be required, having regard to the fact that there was a significant sexual element to the offence of which the accused has been convicted. For the same reasons as have been submitted above in relation to an indecent assault the court is not precluded from considering the question of notification in circumstances where the Crown is not adopting such a position. The court has a duty to protect the public by imposing the notification requirements in appropriate cases. Provided the court affords an accused an appropriate opportunity to make representations about the application or otherwise of the notification requirements, it is entitled to make such an order if it is satisfied that there is a significant sexual element to the offence of which the accused has been convicted. In this case, even if the court had not been entitled to conclude that the appellant had committed an indecent assault upon the child because the Crown had omitted to specify in the libel that the assault was an indecent assault, nevertheless the court would have been entitled to conclude that there was a significant sexual element to it.

[13] For the foregoing reasons we refused the appeal against sentence.