Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 74

HCA/2015-1411/XC

Lady Paton

Lord Matthews

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST SENTENCE

by

ALM

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  S Collins, Sol Adv;  Capital Defence

Respondent:  M McFarlane AD;  Crown Agent

28 July 2015

[1]        The report by the trial judge, taken with the criminal justice social work report, disclose the following.  First, serious sexual assaults on two young girls, for a period of three years in each case.  One girl (LF) was aged eight to 11.  The other girl (AM) was the appellant’s daughter, aged 13 to 15.  Secondly, grave breaches of trust in respect of each complainer.  The appellant babysat for LF (having encouraged her mother to go out) and as for AM, as already stated, she was his daughter.  Thirdly, the appellant’s continuing complete denial of responsibility.   He accuses both complainers of fabricating what happened, and accordingly there is a lack of insight and empathy towards the victims.  Fourthly, there is a risk that the appellant may re-offend.  And finally, there has been the major effect of these crimes on the victims concerned. 

[2]        Against that background we turn to the grounds of the appeal, the written submissions, and all that has been said in oral submissions on the appellant’s behalf.  In particular it is submitted that digital penetration of a young girl entrusted to the appellant’s care, carried on over a period of three years some time ago, is not so grave as to warrant a period of four years imprisonment.  We are unable to agree with that submission.  This was an extremely serious offence which was manipulatively planned and executed in breach of trust for several years causing incalculable damage to a young and vulnerable girl.  We cannot accept that the trial judge was not entitled to select the figure of four years. 

[3]        Secondly, on behalf of the appellant it is submitted that the four year sentence and the eight year sentence should run concurrently.  Reference was made to the Moorov doctrine, without which a conviction could not have been achieved.   However in our view, while Moorov results in offences being assessed together in order to ascertain whether or not there was sufficient corroboration, it does not follow that the sentences for the discrete crimes must be concurrent.  The events relating to AM were separated in time from the events relating to LF.  The three years abuse of AM took place during 1999 to 2001.  The three years abuse of LF took place during 1992 to 1995.  Thus, the offences were committed at quite different times, with different victims.   We are not persuaded that the trial judge was not entitled to impose consecutive sentences. 

[4]        Finally it is contended that the cumulative effect of the two sentences is excessive, bearing in mind the appellant’s difficult childhood and adolescence, his own personal problems, and all the circumstances of the case.  In relation to the difficult childhood and personal problems, the trial judge made some comments about that in his report at page 4, which were very apposite.  So we are not persuaded for these particular reasons.  However, simply looking at the case as a whole, we are persuaded by Mr Collins that the overall sentence is excessive, and that the aims of deterrence, retribution, rehabilitation and public protection would be met by a total sentence of a lower number of years.   In the result, we shall quash the sentence of four years, (it being the sentence that was subject to criticism) and substitute therefor a sentence of two years.  That brings out a total of 10 years in all.  So the appeal is allowed to that extent. 

DAW