Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 8

HCA/2015/003371/XC

Lord Menzies

Lady Smith

Lord Brodie

OPINION OF THE COURT

delivered by LORD MENZIES

in

CROWN APPEAL AGAINST SENTENCE

by

HER MAJESTY’S ADVOCATE

Respondent;

against

MICHAEL JASON LEITH

Appellant:

Respondent:  Brown QC AD; 

Appellant:  Anderson;  W & A S Bruce, Dunfermline

8 January 2016

[1]        In this Crown appeal the Crown submits that the sentence imposed by the sentencing judge in respect of Michael Jason Leith on 22 September 2015 was unduly lenient as that term was interpreted in the case of Her Majesty’s Advocate v Bell 1995 SCCR 250, namely, was the sentence imposed by the sentencing judge outwith the range which the sentencer could reasonably have imposed.

[2]        It was accepted by Mr Anderson on behalf of the respondent that what the respondent pled guilty to on 25 August 2015 at Edinburgh High Court was abhorrent.  The advocate depute submitted that the sentence of 18 months’ imprisonment was unduly lenient in terms of the case of Bell.  Having regard to the fact that the respondent pled guilty to an attempt to conspire to do certain things we agree with the point made by Mr Anderson that this was about as far removed from the actual doing of those things as it is possible to get and still amount to criminality.

[3]        The sentencing judge indicated in his report to us that he regarded this as a very difficult sentencing exercise and we agree with that observation.  Having regard to the fact that the respondent was neither named, nor charged on an art and part basis with any of the offences of which the co‑accused was convicted, and that there is no suggestion that he used any threats towards her, we are unable to conclude that the custodial term imposed by the sentencing judge was unduly lenient ‑ although we do regard it as being lenient.

[4]        However, having regard to the terms of the Criminal Justice Social Work Report, which was prepared by an experienced social worker working at the Clyde Quay Project, specialising in addressing sexual offending, we do consider that the sentence was unduly lenient in not imposing any element of post‑release supervision.  We note that the author of that report states at page 10 that she had been trained in the use of Risk Matrix 2000 and that this tool is used to determine risks of re‑conviction.  Using the RM 2000 Mr Leith has been assessed as posing a low risk of sexual re‑conviction.  However, she went on to state that “Mr Leith targeted a vulnerable 3 year old child and while the true extent of his deviant sexual interests are unclear I would suggest children would be at significant risk whilst Mr Leith remains within the community”, and she ended this section of her report by requesting that consideration be given to imprisonment with a period of post‑release supervision.  We note that the sentencing judge does not address the issue of post‑release supervision in his report to us.

[5]        In light of this assessment and advice we consider that the sentencing judge’s sentence was unduly lenient to the extent that it did not include an extension period in terms of section 210A of the Criminal Procedure (Scotland) Act 1995.

[6]        For the avoidance of doubt we are satisfied that this offence amounts to a sexual offence by reason of section 210A(10)(xxviii) and section 210A(11)(a).

[7]        We shall therefore quash the sentence of 22 September 2015 and substitute therefor an extended sentence of 4½ years in terms of section 210A, the custodial term of which will be 18 months and the extension period of which will be 3 years.  This sentence will be backdated to 11 December 2014 as was the sentence imposed by the sentencing judge.  For the avoidance of doubt, certification under the Sexual Offences Act 2003 and the requirement for intimation to the Scottish Minsiters in terms of section 7 of the Protection of Vulnerable Groups (Scotland) Act 2007 remain.