Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 50

HCA/2016/000038/XC

Lady Dorrian

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY DORRIAN

in

APPEAL AGAINST SENTENCE

by

ADAM McCORMICK

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Mackintosh;  John Pryde & Co

Respondent:  Carmichael AD;  Crown Agent

12 April 2016

[1]        The appellant was convicted at the age of 17 of two serious sexual offences committed against two boys between the ages of 7 and 11 when he himself was between the ages of 14 and 15.  The offences included oral and anal rape, as well as other sexual assaults.  The offences were repeated and committed over a lengthy period of time in each case.  The sentencing judge imposed a sentence of six years detention.  The sentencing judge considered that an adult offender could well face a sentence of nine years for these offences, which was consistent with a term of 8-13 years discussed in the Sentencing Guidelines for England and Wales.  To reflect the age and immaturity of the appellant a substantial reduction from that was required.  It was not considered that an extended sentence was required.  The appellant was described as constituting a moderate risk of reoffending, having a supportive family, would be released under licence in due course and would be subject to the notification requirements of the Sexual Offences Act 2003.  

[2]        Counsel for the appellant submitted that the trial judge had erred in commencing with the sentence which might be appropriate for an adult offender.  When sentencing a child it was necessary, whilst taking into account the requirements for retribution, deterrence and the need to protect the public, also to take into account as a primary consideration the welfare of the child and the desirability of his reintegration into society.  The trial judge should not have started by looking at the appropriate sentence for adult males, but at what was an appropriate sentence for someone of the appellant’s age.  In any event, the trial judge had not taken account of the welfare of the child offender or of the desirability of reintegration into society.  In the result a custodial term of six years was excessive.  Reference was made to Greig v HMA 2013 JC 115 where a 52 year old man was sentenced for offences of rape and lewd practices against each of two young girls (aged 6-9) committed by him when he himself was 14-15.  The sentences were reduced on appeal from eight years to five years.  That was a case in which considerations of reintegration into society did not apply, but they were of paramount importance in the present case, and a shorter period of detention should have been imposed to allow for this.  Counsel also submitted that the whole circumstances and the terms of the criminal justice social work report are such that the trial judge also erred in not imposing an extended sentence.  Although there were protective factors present in this case, the terms of the report indicated that the terms of section 210A were met.  Whilst the court could only impose such an order if satisfied that the terms of the section were met, there was the additional benefit in a young offender that it might assist his reintegration into society.  

[3]        The trial judge selected the sentence which she did by considering the length of sentence which might be appropriate for an adult in the circumstances of this case, and having selected a figure of nine years as being a likely sentence, decided that a reduction from that to six years would reflect the relative immaturity of the child.  We accept that it is not illegitimate in sentencing a child to consider the sentence which an adult offender might attract;  and ultimately the correct sentence may even be identified in such a manner, but in doing so the court should take careful regard of the observations in Hibbard para 15:  

“In a sense therefore, it is correct to say that the sentencing process should not simply involve an exercise of looking at past cases involving adult offenders committing similar crimes and then deducting a percentage, which is deemed appropriate to differentiate adult from child, from the level of the adult sentence. Nevertheless, if precedents for similar crimes involving adults on the one hand and children on the other are analysed, there is bound to be a recognisable arithmetical difference in the two levels. Those for a child will be proportionately lower, even if the exercise has not involved a direct comparison. It is not illegitimate, therefore, for a court to look at the sentences for adult offenders, since by doing so it will gain some knowledge of the recognised levels. With that information, it will realise that any sentence imposed on a child, with his welfare as a primary consideration, ought normally to be significantly below those levels. The court does not consider that the trial judge did other than perform that type of exercise before selecting the punishment part.”

[4]        In selecting the sentence for a child, the court must have regard to the best interests of that child as a primary consideration.  Moreover, a factor in that will be the desirability of the child’s reintegration into society (Article 40).  These points were again made in Greig v HMA: 

“[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 , under reference to the United Nations Convention on the Rights of the Child, Art 3.1 ). Regard must be had also to the desirability of the child's reintegration into society ( Art 40 ).”

[5]        In R(Smith) v Secretary of State for the Home Department  [2006] 1 AC 159 Lady Hale addressed the reasons for treating juveniles differently from adults.  The circumstances were very different, but the principles apply equally: 

“23 On 1 March 2005, the United States Supreme Court decided, in Roper v Simmons, that the Eighth and Fourteenth amendments of the United States Constitution forbad the imposition of the death penalty upon offenders who were under 18 when the offence was committed. In doing so, the majority explained, at pp 15-16, three general differences between juveniles and adults:

‘First, as any parent knows and as the scientific and sociological studies respondent and his amici cite tend to confirm “[a] lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.” [ Johnson v Texas (1993) 509 US 350 , 367] ... It has been noted that “adolescents are overrepresented statistically in virtually every category of reckless behaviour.” Arnett, “Reckless Behaviour in Adolescence:  A Developmental Perspective” (1992) 12 Developmental Review 339 ... The second area of difference is that juveniles are more vulnerable or susceptible to negative influences and outside pressures, including peer pressure ... This is explained in part by the prevailing circumstance that juveniles have less control, or less experience with control, over their own environment. See Steinberg & Scott, “Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty” (2003) 58 Am Psychologist 1009, 1014 ... (“[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting”). The third broad difference is that the character of a juvenile is not as well formed as that of an adult. The personality traits of juveniles are more transitory, less fixed. See generally E Erikson, Identity:  Youth and Crisis (1968).’

24 In the court's view, the first of these meant that a juvenile's irresponsible conduct was not as morally reprehensible as that of an adult; the second meant that juveniles had a greater claim to be forgiven for failing to escape the negative influences around them; and the third meant that even the most heinous crime was not necessarily evidence of an irretrievable depraved character. Furthermore, at p 19:  

‘It is difficult even for expert psychologists to differentiate between the juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime reflects irreparable corruption. See Steinberg & Scott 1014-1016.’

25 These considerations are relevant to the retributive and deterrent aspects of sentencing, in that they indicate that the great majority of juveniles are less blameworthy and more worthy of forgiveness than adult offenders. But they also show that an important aim, some would think the most important aim, of any sentence imposed should be to promote the process of maturation, the development of a sense of responsibility, and the growth of a healthy adult personality and identity. That is no doubt why the Children and Young Persons Act 1933, in section 44(1) , required, and still requires, every court dealing with any juvenile offender to have regard to his or her welfare. It is important to the welfare of any young person that his need to develop into fully functioning, law abiding and responsible member of society is properly met. But that is also important for the community as a whole, for the community will pay the price, either of indefinite detention or of further offending, if it is not done. “

[6]        Other than to the extent that his youth made him less blameworthy than an adult, it is not clear that the trial judge had in mind any of these important factors – the welfare of the child offender, the need to facilitate rehabilitation and reintegration into society.  It does not seem that she considered these factors at all, merely allowing a discount from an appropriate adult sentence to allow for immaturity.  In that regard we consider that she erred.  

[7]        Moreover, we are also satisfied that she erred in concluding that this was not a case where an extended sentence was necessary.  Her reasons for so concluding were the assessment of a moderate risk of re-offending, a supportive family background, and the prospect of gaining education when in custody.  She also noted as protective factors that on release the appellant will be subject to licence conditions and subject to registration under the Sex Offenders Act.  However, as the trial judge also noted, the criminal justice social work report also highlighted the appellant’s denial of the offences as a considerable concern, and one which limited the scope of offence focussed work which could reduce risk.  In our view this is a significant factor in determining the extent to which an extended sentence might be necessary to protect the public from serious harm.  Such persistent denial in these circumstances hampers the assessment of risk, and means that an assessment of risk as “moderate” requires to be viewed with some caution, even where other protective factors are in place.  We note that the criminal justice social work report states that the appellant “requires a moderate level of supervision in order to assist him to desist from further acts of sexual behaviour”.  He has a lack of insight into his behaviour, which is troubling.  The author of the report stated: 

“I am of the opinion that a considerable amount of work is required on his part in order to reach a point where a reduction in the level of supervision can be undertaken without placing children that he comes into contact with at risk of sexual abuse”

adding that further interventions are required in order to address the subject’s attitude towards the index offences.  The reporter considered that the appellant’s failure to accept responsibility was a barrier to offence focussed work and required to be addressed at the earliest opportunity to promote a reduction in risk.  In conclusion the author wrote that: 

“Proposals outlining the nature and focus of post release supervision have been noted within this submission which I believe would best manage the level of risk that Mr McCormick may pose upon liberation from custody.”

Against the whole background of the terms of that report allied to the very serious nature of the offences, committed by one so young, and giving due respect to the discretion of the trial judge, we are unable to agree that this is a case in which an extended sentence was not necessary for the protection of the public.  It may well be that the effect of such an order would assist the reintegration of the appellant, but although that is an important consideration in general, it is, as Mr Mackintosh suggested, merely an incidental benefit:  the critical question is whether the terms of the section are met.  

[8]        In selecting the appropriate custodial term of an extended sentence, the court has had regard to the fact that the extension period is specifically designed to reduce risk.  The overall sentence requires to be considered.  In the circumstances we consider that an appropriate sentence would be an extended sentence consisting of a custodial term of five years with an extension period of three years.  We therefore quash the sentence imposed by the trial judge and impose said extended sentence.