Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 36

HCA/2016-000021/XC

Lady Dorrian

Lord Bracadale

STATEMENT OF REASONS

delivered by LADY DORRIAN

in

APPEAL AGAINST SENTENCE

by

KE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Paterson;  Paterson Bell Solicitors

Respondent:  McFarlane, AD; Crown Agent

29 March 2016

[1]        In this case the sheriff imposed 2 concurrent cumulo sentences in respect of offences of a sexual nature.

[2]        Charges 1, 4, 5 and 6 consisted of 2 charges of installing a covert camera in the bathroom of his home, in order to film the genitals of two different children, a charge of sexual assault against one of those children by pulling down her leggings and placing his face on her buttocks, and a charge relating to indecent images.

[3]        Charges 7 to 11 were all charges of use of the covert camera to record adult individuals carrying out acts of a private nature within the appellant’s bathroom. 

[4]        The sheriff imposed extended sentences, and discounted the custodial term in respect of the plea.  In relation to the first tranche of offences she selected a headline sentence of 6 years;  and in relation to the second tranche the headline sentence was the maximum which could be imposed ie 5 years.  It was accepted on behalf of the appellant that an extended sentence was appropriate but it was argued that having regard to the circumstances of the appellant the headline custodial sentences selected by the sheriff were excessive.  The appellant is 42 years of age and has no previous convictions.  He had been drinking heavily at the time, and now recognised that this offending behaviour needs to be addressed.  Immediately after his arrest he attended for counselling with “Stop it now”, a national programme for the prevention of child sexual abuse.  Although his insight into his offending is limited, he has been considered suitable for offence-focused work, which he is willing to undertake. 

[5]        The sheriff considered it to be alarming that the appellant could not offer any explanation for his behaviour, and emphasised the degree of planning and repetition.  She noted that the Moving Forward Making Changes Programme, for which the appellant was assessed as suitable, and which would help reduce the future risk, requires a minimum period of 3 years for completion.  However, that programme may be started in prison and continued at liberty; it does not require a 3 year custodial term for its completion.

[6]        In our view the sentences selected by the sheriff were excessive.  The offences are unpleasant and those involving children are particularly disturbing, but they would not merit a custodial term of the length of the headline sentences selected by the sheriff.  We are satisfied that the sentences by the sheriff are excessive.  We will therefore quash the sentences imposed and replace those with an extended sentence consisting of a 32 month custodial term with a 2 year extension in respect of each tranche of offences, the sentences to be served concurrently.