British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> HER MAJESTY'S ADVOCATE, APPEAL AGAINST SENTENCE BY AGAINST CH [2017] ScotHC HCJAC_82 (15 November 2017)
URL: http://www.bailii.org/scot/cases/ScotHC/2017/[2017]_HCJAC_82.html
Cite as: 2017 GWD 37-574, [2017] ScotHC HCJAC_82, 2017 SCCR 587, [2017] HCJAC 82, 2018 SLT 35
[New search] [Printable PDF version] [Help]
Page 1 ⇓
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Brodie
Lord Turnbull
[2017] HCJAC 82
HCA/2017/000466/XC
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST SENTENCE
by
HER MAJESTY’S ADVOCATE
against
CH
Appellant;
Respondent:
Appellant: A Prentice QC (sol adv); Crown Agent
Respondent: A Ogg Solicitor Advocate; J C Hughes & Co, Glasgow
15 November 2017
Conviction, sentence and Crown appeal
[1] The respondent was indicted in the High Court on four charges. On 17 May 2017 he
pleaded guilty to charges 002 and 003 on the indictment, subject to certain amendments. His
pleas of not guilty to charge 001 and charge 004 were accepted by the Crown. The charges
to which the respondent pleaded guilty were in the following terms:
Page 2 ⇓
2
“(002) on 11 October 2016 at [an address in Glasgow] you … did penetrate with your
penis the mouth of [RC] … a child who had not attained the age of 13 years, cause
him to masturbate you, masturbate yourself, and you did rape him:
CONTRARY to Section 18 of the Sexual Offences (Scotland) Act 2009;
(003) on 11 October 2016 at [the same locus] you … did take or permit to be taken or
make indecent photographs of [RC], a child, born [in February 2013] … namely a
video recording:
CONTRARY to the Civic Government (Scotland) Act 1982, Section 52(1)(a) as
amended”.
The sentencing judge adjourned the diet for the preparation of a criminal justice social work
report and thereafter a psychiatric report. On 20 July 2017 she imposed a cumulo sentence of
three years and nine months’ imprisonment. The sentence was discounted from five years’
imprisonment to reflect the respondent’s guilty plea. The respondent was also made subject
to the notification requirements under Part 2 of the Sexual Offences Act 2003 for an
indefinite period. On 4 August 2017 the Crown lodged an appeal against sentence on the
grounds of undue leniency.
The agreed narrative
[2] An agreed narrative was presented to the sentencing judge as follows. The
respondent was a good friend of the complainer’s father, JC. Both the respondent and JC
were unemployed. Prior to the offences, the respondent and JC would see each other on a
daily basis. Although they would regularly visit each other’s homes, the respondent had
never been left alone with the complainer. The complainer, RC, was aged three years and
8 months at the time of the offences. He lived with his father, JC; his mother, DM; and his
older brother, who was aged nine, in a flat in Glasgow.
[3] On the day of the offences JC was at home with RC and his elder brother. RC’s
brother was off school sick. Their mother was at work. The respondent arrived at the flat in
Page 3 ⇓
3
the late morning where he played computer games in the sitting room with JC. During this
time, the complainer RC was in his parents’ bedroom playing on his tablet; his brother was
in his own room playing on a games console. At around 2pm JC left the flat to meet his
partner, DM, from her work. JC left the respondent alone in the flat with both RC and his
elder brother.
[4] Almost immediately after JC left the flat, RC found himself alone with the
respondent in the living room. It is not clear from either the sentencing judge’s report or the
agreed narrative why RC moved from his parents’ bedroom into the sitting room to be with
the respondent, but nothing turns on this point. The respondent proceeded to penetrate the
complainer’s mouth with his penis. Whilst doing so, he filmed the act using his mobile
phone.
[5] The mobile phone recording which was subsequently recovered showed the
complainer taking hold of the respondent’s erect penis, placing it in his mouth and
masturbating the respondent. The complainer is heard on the footage saying “I want to see
the camera”. The respondent replies “Quick, quick. Before your daddy comes”. The
footage continues to show the complainer holding up a toy in his hand. The respondent
then places his penis in the complainer’s mouth again (despite the fact that the respondent’s
plea of guilty to charge 002 was accepted under deletion of the libel that he repeatedly raped
the complainer). The footage shows the complainer again masturbating the respondent,
before the respondent begins masturbating himself. The respondent can be heard on the
video footage calling the complainer “a good boy”. Whilst his penis is in the complainer’s
mouth, he tells him to “watch his teeth” and “not to bite”. The complainer can be heard to
gag at one point. The video footage lasted for about five minutes.
Page 4 ⇓
4
[6] During the offence, the complainer’s elder brother remained in his room playing
computer games. DM finished her work at 3pm and returned home soon after with JC.
They found the respondent sitting on a couch in the sitting room with the complainer’s
brother, who was playing a computer game. The complainer was not in the sitting room
and DM assumed he was in her bedroom playing on his tablet. There was some brief
conversation between the adults before the complainer ran into the sitting room and said “I
ate your friend’s pecker” (“pecker” being the word the family used for penis). The
complainer pointed at the respondent as he said it. DM asked the complainer what he
meant and he again stated “I ate his pecker”. The respondent became irate; he started
waving his arms around and accused the complainer of “being bad” by pulling his trousers
down. The respondent was very angry. He said “am [sic] no having this” and swore at the
complainer. DM told the respondent not to swear at her son. JC then dragged the
respondent out of the flat. Once outside the respondent ran away, leaving behind his two
mobile phones and his jacket. As he had left, DM questioned her son further about the
incident. The complainer repeated what had happened and said it had been “disgusting”.
The complainer’s parents contacted the police.
[7] Police attended at the family’s flat in the early evening. The complainer was
forensically examined later the same evening at hospital. The respondent’s semen was
found in an oral swab. The complainer was later taken to a local police station and a joint
investigative interview was conducted. The relevant video footage was subsequently
recovered from the respondent’s mobile phone.
The respondent’s personal circumstances and background reports
[8] The sentencing judge had before her a criminal justice social work report relating to
Page 5 ⇓
5
the respondent (”the CJSWR”), a report from the Clyde Quay Project (a specialised sex
offenders’ programme), and a psychiatric report regarding the respondent’s mental state
and attitude towards the offence which the judge had ordered on the recommendation of the
author of the CJSWR.
[9] The respondent was aged 28 at the date of the offences and was a first offender. He
had experience of employment but prior to being remanded he had been unfit for work due
to incapacitating chronic cluster headaches for which he receives medication. At the time of
the offences he lived with his long-term partner and her 16 year old son. This relationship
had lasted for 11 years but had come to an end when the respondent’s partner became aware
of the charges to which the respondent pleaded guilty. The respondent was, prior to being
remanded on pleading guilty to these offences, residing in homeless accommodation.
[10] The respondent had considerable difficulty in explaining his conduct. His position
was that at the time of the offences he had consumed drugs (Valium and Ketamine), which
had had a disinhibiting effect, and he had little recollection of the incident. He maintained
that his memory was vague and unreliable. The CJSWR records that the respondent initially
denied being sexually attracted to children but later briefly admitted to having sexual
fantasies of a paedophilic nature, which admission he then quickly retracted. When pressed,
the respondent accepted that “I have got some issues; I think that I must have sexual
fantasies towards children.” He admitted to having been sexually aroused by the
complainer at the time of the offences to which he had pleaded guilty. It was the opinion of
the author of the CJSWR that the respondent’s position that he had never intended sexually
to assault the complainer was implausible and misleading. He had no doubt that the
offences were committed for the respondent’s sexual and emotional gratification. The
author concluded that the respondent had failed to take ownership of his offending, was
Page 6 ⇓
6
lacking in genuine empathy and had said little which suggested that he had any meaningful
understanding of the emotions, and had distorted thinking and motivations which might
have led him to the rape of the complainer.
[11] Both the CJSWR and the Clyde Quay Project report contain assessments of the
likelihood of reoffending by the respondent. Having identified the assessment tool used as
the Thornton Risk Matrix 2000 and having given a brief description of how the tool is used
to evaluate risk by reference to static and aggravating factors, the author of the latter of these
reports assessed the respondent as at medium risk of sexual reconviction. The author of the
CJSWR, on the other hand, assessed the respondent as being at high risk of reoffending. On
this matter of risk we have preferred the assessment in the Clyde Quay Project report. First,
although we note that the authors based their respective reports on one interview of the
respondent carried out jointly and, we would assume collaboratively in consultation one
with the other, the Clyde Quay Project is the specialist resource in respect of men convicted
of sexual offences. Second, while the terms of the Clyde Quay Project report suggest to us
that a full assessment using the Thornton Risk Matrix 2000 was carried out, we are less
confident about the basis of the assessment which is referred to in the CJSWR. At section
4(b) of the CJSWR it is narrated that a Level of Service/ Case Management Inventory
(“LSCMI”) has been completed in connection with the preparation of the report. We beg to
doubt whether that is strictly accurate. We are aware from our collective experience that the
LSCMI is validated as a useful assessment tool but employing it requires a rigorous
questioning of a subject with a view to exploring a large number of potentially relevant
factors, a demanding exercise requiring more than an hour to complete. The LSCMI
requires particular training if it is to be used effectively. There is available, however, a more
easily used screening version of the LSCMI which confines itself to a much more limited list
Page 7 ⇓
7
of criminogenic and protective factors. It is accordingly a more superficial instrument than
the LSCMI. The risk assessment is found in section 7 of the CJSWR. There it is narrated that
the respondent’s score was informed by his previous convictions, unemployment status,
tendency to abuse illicit substances, lack of familial and pro-social peer support and
concerns generated by his involvement in the current offences. These are the factors
addressed in the screening version of the LSCMI tool.
[12] The author of the psychiatric report had no recommendations to make. She found
there to be no mental health reasons why the respondent would not be fit for any disposal
the Court deemed appropriate.
The sentencing judge’s reasoning
[13] The sentencing judge acknowledges that she found the sentencing exercise
particularly difficult in this case. She considered the oral rape of a very young child to be a
very serious offence which required a substantial prison sentence. The offence was
aggravated by the breach of trust which the complainer’s father had reposed in the
respondent and by its opportunistic nature. The sentencing judge also notes that the offence
was of a short duration but that the opportunistic nature of the offence was suggestive of a
pre-existing sexual interest in children. This, and the nature of the offence itself, raised an
issue of risk; however, the sentencing judge was not satisfied that an extended sentence was
necessary or appropriate (report, paragraphs [14] to [16]).
[14] The sentencing judge notes that the offence appeared to be an isolated incident.
Despite her earlier observation that the opportunistic nature of the offence suggested that
the respondent had a pre-existing sexual interest in children, she observes that there was no
suggestion of any actual history of prior sexual interest in children. The respondent
Page 8 ⇓
8
appeared as a first offender at the age of 29. He had a stable background and had been in a
long-term relationship with his partner for about 11 years. During this time, no concerns
had been raised about the respondent’s behaviour towards his partner’s child (report,
paragraph [17]).
[15] The sentencing judge recognises that no adequate explanation had been provided by
the respondent for his conduct. It seemed that he was confused, distressed and in denial
about his offending. The sentencing judge notes that the respondent’s accounts to the
authors of the criminal justice social work report and the report from the Clyde Quay Project
were contradictory and confused. The respondent appeared to veer from admitting to a
sexual interest in children to complete denials of such interest. The sentencing judge does
not consider any of what he said to be reliable. It was clear that he had yet fully to take
responsibility for his conduct. At the same time, however, the respondent did express a
positive attitude towards engaging in programmes to address his conduct (report,
paragraph [18]).
[16] The psychiatric report merely agreed with the background reports as to risk and
rehabilitation; however, it also reported that the respondent was “disgusted” by his conduct
and said that he needed help. The sentencing judge decided that, in the circumstances of the
case, a long-term finite sentence would require the respondent to address his conduct within
prison, thereby affording the public sufficient protection from him (report, paragraphs [19]
and [20]).
Note of appeal and submissions
Appellant
[17] In the Crown Note of Appeal it is submitted that the cumulo sentence of three years
Page 9 ⇓
9
and nine months’ imprisonment was unduly lenient. It is submitted that in all the
circumstances the sentence fails to recognise the gravity of the offences, which involved a
significant breach of trust and which were committed against a very young child. The
offences were committed in the complainer’s family home and the act of oral rape was
recorded by the respondent on his mobile phone. It is submitted that the sentence failed to
satisfy the need for retribution, deterrence, and protection of the public. The note of appeal
concludes:
“In all of the circumstances the sentence imposed fails to recognise the gravity of the
offences, which involved a significant breach of trust against a very young child, in
the family home, perpetrated along with recording of the offence. The sentence
imposed failed to satisfy the need for retribution and deterrence and the protection
of the public. The circumstances of the offence and the offender required that in
addition to a substantial period of imprisonment there be an extended period of
supervision for the protection of the public” (paragraph 6).
[18] In developing his submissions under reference to the Crown’s written case and
argument, the advocate depute drew attention to the assessments of risk of reoffending
made by the authors of the CJSWR and the Clyde Quay Project report. Whereas the
sentencing judge had described the offending as short-lived, the duration of the rape lasted
for a period of five minutes until the emission of semen upon the child. This was quite a
long period over which the child complainer was subjected to a significant sexual assault. It
was an aggravating rather than mitigating feature of the case. The sentencing judge had not
recognised that. An additional significant aggravation to which the sentencing judge had
not had proper regard was the fact that the respondent had filmed his commission of the
acts referred to in charge 002. While it was not known why he had chosen to do so, it could
be presumed that it was for the purpose of subsequent viewing. There were further
aggravations, as had been set out in the Crown’s written case and argument: the young age
Page 10 ⇓
10
of the child complainer, the fact that the rape had been perpetrated in the complainer’s
family home with his sibling in an adjacent room at the time of the offending, the breach of
trust involved.
[19] The Sentencing Council for England and Wales has issued sentencing guidelines to
the courts in relation to sexual offences in that jurisdiction (the Sexual Offences Definitive
Guideline). These guidelines may be referred to in order to produce a comparator which
might be used as a cross-check of sentences selected in Scotland: HM Advocate v AB 2016
SCCR 47, Lord Justice Clerk Carloway at para 13. Were those guidelines to be applied in
respect of the offence in England and Wales which corresponds to charge 002 in the present
case (viz. rape of a child under 13, under section 5 of the Sexual Offences Act 2003) they
would result in a characterisation of the case at level 2A for culpability and harm, having
regard to the aggravating features of age of the child, abuse of trust, recording of the offence
and ejaculation, and a consequent sentence in the range of 11 to 17 years’ imprisonment,
with a starting point of 13 years’ imprisonment: Definitive Guideline at pages 27 to 31.
[20] The advocate depute noted the doubts expressed by the sentencing judge in her
report as to the competency of an appeal against a decision not to impose an extended
sentence. In his submission her concern was misplaced; the failure to impose an extended
sentence in circumstances where it was required was simply an example of the extent to
which the Crown contended that the sentence which was imposed was unduly lenient.
Respondent
[21] On behalf of the respondent, Ms Ogg reminded the Court of the exposition of the
statutory test for an appeal against sentence at the instance of the Lord Advocate (that “the
disposal was unduly lenient”) that appears in HM Advocate v Bell 1995 SCCR 244 at 250D. It
Page 11 ⇓
11
means that for a Crown appeal to succeed the sentence must fall outside the range of
sentences which the judge at first instance, applying his mind to all the relevant factors,
could reasonably have considered appropriate. Applying that test, it could not be said that a
sentence based on the selection of a headline figure of five years’ imprisonment was unduly
lenient. The sentencing judge had had regard to all relevant factors. If one reviewed the
disposals which had been adopted in the cases which were included in the list of authorities
provided by the Crown: HM Advocate v Hamilton 2003 GWD 19-581, HM Advocate v JT 2004
HM Advocate v AB, the sentence under appeal did not appear to fall outside the range of
sentences which could be considered appropriate. The figure which the advocate depute
had suggested would be produced by an application of the Definitive Guideline was
excessive. It did not allow for mitigating factors. This was an isolated offence. It did not
demonstrate manipulation or pre-planning. As appeared from the background reports, the
respondent had recognised the seriousness of his offending. He had understood the impact
on the complainer. There was no basis for the imposition of an extended sentence. The
appeal should be refused.
Discussion
Competency of appeal
[22] Section 108 of the Criminal Procedure (Scotland) Act 1995 provides, inter alia:
“108.— Lord Advocate's right of appeal against disposal.
(1) Where a person has been convicted on indictment, the Lord Advocate may, in
accordance with subsection (2) below, appeal against any of the following disposals,
namely—
(a) a sentence passed on conviction;
Page 12 ⇓
12
(b) a decision under section 209(1)(b) of this Act not to make a supervised
release order;
(c) a decision under section 234A(2) of this Act not to make a non-
harassment order;
(ca) a decision under section 92 of the Proceeds of Crime Act 2002 not to
make a confiscation order;
(cb) a decision under section 22A of the Serious Crime Act 2007 not to
make a serious crime prevention order;
(cb) a decision under section 36(2) of the Regulatory Reform (Scotland)
Act 2014 not to make a publicity order;
(cc) a decision under section 41(2) of that Act not to make a remediation
order;
(cd) a decision under section 97B(2) of the Proceeds of Crime Act 2002 to
make or not to make a compliance order;
(cd) a decision under section 30(2) of the Health (Tobacco, Nicotine etc.
and Care) (Scotland) Act 2016 not to make a remedial order,
(ce) a decision under section 30(2) of that Act not to make a publicity
order,
(dd) a drug treatment and testing order;
(f) a decision to remit to the Principal Reporter made under section
49(1)(a) of this Act;
(g) an order deferring sentence;
(h) an admonition; or
(i) an absolute discharge.
(2) An appeal under subsection (1) above may be made—
…
(b) where it appears to the Lord Advocate, in relation to an appeal under—
(i) paragraph (a), (h) or (i) of that subsection, that the disposal
was unduly lenient;
(ii) paragraph (b) [(c) (ca), (cb) [(cc), (cd) or (ce)] or (cd)] of that
subsection, that the decision not to make the order in question
was inappropriate;
Page 13 ⇓
13
(iii) paragraph [(cd) or] (dd)] of that subsection, that the making of
the order concerned was unduly lenient or was on unduly
lenient terms;
(iv) under paragraph (f) of that subsection, that the decision to
remit was inappropriate;
(v) under paragraph (g) of that subsection, that the deferment of
sentence was inappropriate or was on unduly lenient
conditions.”
[23] In her report to this Court commenting on the appeal the sentencing judge expressed
a concern as to the competency of an appeal against a decision not to impose an extended
sentence. That concern arose from the terms in which the Lord Advocate’s right of appeal is
framed in section 108 of the 1995 Act. The disposals which the Lord Advocate may appeal
are the subject of a comprehensive list, as enumerated in the paragraphs of subsection (1).
The list begins with: “(a) a sentence passed on conviction”, but there then follow nine
paragraphs ((b) to (ce)) which are framed as a decision not to make an order of a particular
sort. For example, paragraph (b) is “a decision under section 209(1)(b) of this Act not to
make a supervised release order”. There is no “decision …not to make” provision in
relation to an extended sentence under section 210A of the 1995 Act but nothing arises from
that for, as the sentencing judge correctly observes, an extended sentence is a sentence of
imprisonment (and therefore “a sentence passed on conviction” in terms of paragraph (a)),
albeit one which is the aggregate of a term of imprisonment (“the custodial term”) and a
further period (“the extension period”) for which the offender will be subject to licence:
sentencing judge discerned a difficulty was the provision in section 108(2)(b)(i) which
provides that an appeal may be made where it appears to the Lord Advocate that the
disposal was unduly lenient. This was to be contrasted with section 108(2)(b)(ii), the
equivalent provision to section 108(2)(b)(i) in relation to, for example, a decision not to make
Page 14 ⇓
14
a supervised release order. Section 108(2)(b)(ii) provided that an appeal may be made
against a decision not to make a supervised release order where it appears to the
Lord Advocate that the decision not to make the order was inappropriate. That, so the
sentencing judge considered, fitted. Appropriateness was a proper criterion for review of a
decision not to impose a supervised release order given that its purpose was to protect the
public from serious harm. Undue leniency, on the other hand, was not so obviously a
proper criterion; it was difficult to see how a decision not to impose an extended sentence
involved considerations of undue leniency to the accused. As with a supervised release
order, an extended sentence can only be imposed if it is necessary for the protection of the
public from serious harm from the offender. Where an extended sentence is not imposed
that will not be because the sentencer has exercised leniency, it will be because he or she has
not considered it to be necessary.
[24] We do not share the sentencing judge’s concerns over the competency of an appeal at
the instance of the Lord Advocate which is based in whole or part on the proposition that
the failure of the sentencing judge to impose an extended sentence resulted in a disposal
which was unduly lenient. We note that in HM Advocate v JT the Court did just what the
sentencing judge suggested might be incompetent; in a Crown appeal on the ground of
undue leniency against a sentence which was not an extended sentence the appeal was
allowed and the original sentence quashed with an extended sentence being substituted in
its place.
[25] As already observed, an extended sentence is a single disposal which, through an
aggregation of the custodial term and the extension period, is intended to meet all relevant
sentencing objectives. Among these objectives is the protection of the public from serious
harm. A custodial sentence which is not an extended sentence is also intended to meet all
Page 15 ⇓
15
relevant sentencing objectives, including protection of the public. Where such a sentence is
appealed by the Crown, the argument may be that insufficient weight has been given by the
sentencer to the objective of protection of the public. As a matter of the ordinary use of
language that can be regarded as an argument that the sentence was “unduly lenient” in that
it gave too much weight to factors pointing to a lesser sentence and too little weight to
factors pointing to a greater sentence (irrespective of what the respective relevant factors
might be). More simply, section 108(1)(a) of the 1995 Act allows the Lord Advocate to
appeal any sentence passed on conviction. In deciding whether to make such an appeal, the
Lord Advocate, and in deciding whether to grant such an appeal, this Court, must consider
that the disposal was unduly lenient: section 108(2)(b). What that means is explained in
HM Advocate v Bell: the sentence must fall outside the range of sentences which the judge at
first instance, applying his mind to all the relevant factors, could reasonably have considered
appropriate. Once that test is met and the original disposal is quashed the question of what
would be an appropriate alternative disposal is at large for the Court. As Lord Carloway,
“[W]hen the court is considering an appeal by a convicted person against sentence, it
is looking to see whether a miscarriage of justice has occurred by reason of that
sentence being excessive, inappropriate or unduly lenient, as the case may be. This
exercise does not involve simply correcting any flawed part of the sentencing
exercise carried out by the court of first instance and adjusting the sentence imposed
according only to that correction. The court requires to look at the entire process in
order to decide whether the sentence ultimately imposed is sustainable”
Sentences imposed in other cases
[26] With a view to supporting her submission that the sentencing judge’s selection of
five years’ imprisonment did not fall outside the range of sentences which a judge at first
instance, applying his or her mind to all the relevant factors, could reasonably have
Page 16 ⇓
16
considered appropriate, Ms Ogg invited the Court to look at the disposals which had been
determined upon by the Appeal Court in five cases which the Crown had included in its list
of authorities. We accept the potential utility of such an exercise. An objective in sentencing
is consistency, in other words dealing with similar cases in a similar fashion with a view to
achieving comparative justice. Equally, what is the appropriate range of sentences in a
particular case will be informed by what has been done by sentencers in similar cases on
previous occasions. Regard must therefore be had to precedent, at least where it enunciates
a relevant principle or demonstrates a consensus in decision-making in relation to a
borne in mind that the process of sentencing is case-sensitive and the facts in one case will
seldom exactly conform to the facts in another case.
[27] The first of the cases to which Ms Ogg drew attention was HM Advocate v Hamilton.
There a sentence of six years’ imprisonment with a three year extension period imposed in
terms of section 210A of the 1995 Act was quashed and replaced with a sentence of 10 years
with a three year extension period where the accused had pleaded guilty to rape and the
forcing of a complainer to submit to oral intercourse. The complainer was aged 42 but had
the mental development of an eight year old child and had been subjected to a prolonged,
violent and degrading ordeal.
[28] The respondent in HM Advocate v JT pleaded guilty to using lewd practices against a
girl aged between six and ten by handling and photographing her private parts while she
was asleep, and against his niece by using similar practices and also placing his private
member against her private parts and of once raping his niece, both when she was aged
between 13 months and five years. The rape involved only penetration of the labia majora
Page 17 ⇓
17
to the extent of one centimetre and was unlikely to have caused any pain or injury and could
have happened without the complainer waking up. These incidents occurred while the
complainers were sleeping in the respondent's house. The respondent admitted to a
psychologist that he had photographed himself “attempting to insert his penis into his niece
while she was asleep”. He also pleaded guilty to being in possession of a number of
indecent photographs of children which had been downloaded on to his computer, contrary
to s 52A of the Civic Government (Scotland) Act 1982. The offences occurred over a period
of four years. Following the commencement of police enquiries the respondent had
displayed remorse and had assisted the police. The advice available to the sentencing judge
was that the respondent was at a low risk of reoffending, and that that risk could be reduced
by his participation in group work to increase his level of insight, and by supervision and
monitoring on his release. The sentencing judge imposed a cumulo sentence of five years on
the common law charges and a concurrent sentence of three months on the statutory charge.
The sentence reflected a discount of two years in respect of the pleas of guilty. On an appeal
on the ground of undue leniency directed against the sentence of five years, the Court
quashed the sentence and substituted an extended sentence with a custodial term of eight
years and an extension period of five years. The Court observed that had it not been for the
respondent’s plea of guilty and earlier conduct indicative of his acceptance of guilt and his
cooperation with the police the appropriate custodial term would have been one of ten
years. It further observed that the frequency with which a particular sexual offence has been
committed will usually be an important consideration in the selection of an appropriate
sentence, with respect both to punishment and to risk.
[29] The appellant in Tough v HM Advocate, who was 23 years of age and with a very low
IQ, pleaded guilty to the sexual assault and rape of a 12 year old girl by penetrating her
Page 18 ⇓
18
mouth with his penis, penetrating her vagina with his finger and causing her to masturbate
him; contrary to sections 18, 19 and 20 of the Sexual Offences (Scotland) Act 2009. The terms
of the agreed narrative were that the complainer did not want any of these things to happen
to her, but she did not inform the appellant of this. She said that she went along with what
the appellant had wanted because of the amount of alcohol she had consumed. The
appellant was given an extended sentence of six years and nine months, the custodial term
being three years and nine months and the extension period three years. The custodial term
was discounted from five years to reflect the appellant’s guilty plea. The Court considered
that starting point to be excessive given the relative maturities of the complainer and
appellant. It quashed the original sentence and substituted an extended sentence of four
years and three months, the custodial term being 27 months (discounted from three years in
respect of the guilty plea) and the extension period two years.
[30] In HMA v SSK the respondent was indicted in respect of charges of sexual offences
some of which preceded the commencement of the Sexual Offences (Scotland) Act 2009 and
some of which came after that. He was found guilty of seven charges involving offences
against two of his former partners and their children. The first (charge (001)) was one of
using lewd practices on various occasions against a boy aged between nine and ten, in 2007
to 2008, including handling the boy's penis, attempting digital penetration of his anus,
compelling the boy to masturbate him and oral penetration of the boy with his penis. The
second (charge (002)) was of indecent assault, again on various occasions during the same
time period, against the boy in the form of attempted sodomy. The third (charge (007)) was
using lewd practices on various occasions against a girl aged between 12 and 14 in 2008 to
2010, including digital vaginal penetration, contrary to section 6 of the Criminal Law
(Consolidation) (Scotland) Act 1995. In relation to the adult complainers, the fourth and fifth
Page 19 ⇓
19
(charges (013) and (015)) were libels of indecent assault against the first adult complainer in
2008 to 2010 in the form, first, of one incident of continued penile penetration of the anus
after the withdrawal of consent and, secondly, of penile penetration of the anus on various
occasions. The sixth (charge (018)) involved anal rape of the first adult complainer on
various occasions from 2010 to 2013, contrary to section 1 of the Sexual Offences (Scotland)
Act 2009. The seventh (charge (019)) was the anal rape of the second adult complainer, the
respondent’s wife, on one occasion in 2013, contrary to the same statutory provision. The
trial judge imposed sentences which, in aggregate, ultimately amounted to an extended
sentence of seven years, with a custodial element of five years' imprisonment. On a Crown
appeal the Court quashed these sentences and substituted an extended sentence of 12 year
with a custodial term of eight years. The opinion of the court was given by the Lord Justice
Clerk (Carloway). At para [24] he said this in relation to what sentence was appropriate in
relation to the offences against the children:
“In relation to the conduct libelled in charges (1) and (2), this included the repeated
oral penetration and attempted sodomy of a nine or ten year old boy over whom the
respondent was in a position of trust;...
The behaviour went on for a considerable period of time. This degree of sexual
abuse committed against a child of this age is rightly regarded as particularly
serious. ... Although the conduct in relation to the girl ... was more limited, it was still
serious and significant, particularly when seen in light of the offending against the
boy. The offences against the children can be seen as a course of conduct which
could (but need not) have been disposed of by a cumulative penalty. In the modern
era, even for an offender with no analogous previous convictions, a custodial
sentence of at least four years would be appropriate for such lewd practices...”
[31] The respondent in HM Advocate v AB was convicted after trial of the oral rape of his
cohabitee's 14 year old daughter. The offence took place in the family home and the
sentencing judge accepted that the respondent had been in a position of trust. The rape was
accompanied by threats that the respondent would hit the complainer if she refused to
Page 20 ⇓
20
perform oral sex on him. The trial judge imposed a sentence of three years' imprisonment.
She took into account: the lack of analogous offending; the absence of “penile penetration or
other activity that physically damaged the complainer’s physical integrity”; and the violence
being limited to a single threat. The Appeal Court allowed the appeal and substituted a
sentence of five years' imprisonment. In delivering the Opinion of the Court, Lord Justice
Clerk Carloway said this (at paras [11] and [12]):
“The court recognises at once that Parliament has re-categorised penile penetration
of the mouth as rape, it must sentence upon that basis. In this context it also
recognises, as it may always have done, that an act of oral rape may be as abhorrent,
demeaning and traumatising as vaginal rape. …
It must always be a question of facts and circumstances whether an act of oral rape
will attract a higher sentence than a vaginal rape or vice versa. The factors to be
considered will include, in each case: the level of violence used; the relationship
between the offender and the victim; the age or other vulnerability of the victim; the
degree of psychological as well as physical harm caused; the age, previous
convictions and character of the offender and any degree of remorse. There are, of
course, many other variables.”
The English Sexual Offences Definitive Guideline
[32] The advocate depute submitted that the sentencing judge’s disposal could be seen to
have been unduly lenient when cross-checked against the relevant Definitive Guideline
formulated by the Sentencing Council for England and Wales.
[33] The Definitive Guideline sets out a series of steps which the Court must follow in
arriving at its sentence. Step 1 is to determine the offence category by reference to harm and
to culpability. Among the factors that may bring a case into category 2 for harm is the
particular vulnerability of the child due to its extreme youth. That applies in the present
case. For each harm category there are two culpability categories, A and B. Factors bringing
a case into the more serious category A include abuse of trust, sexual images of the victim
being recorded and the deliberate isolation of the victim; all of which apply in the present
Page 21 ⇓
21
case. The range of sentences indicated for category 2A is between 11 and 17 years’
imprisonment with a starting point of 13 years’ custody. Step 2 is to determine where a
particular case lies in the category range by a consideration of aggravating and mitigating
factors. We agree with the advocate depute that a number of the aggravating factors
identified in the Guideline are present in the present case: specific targeting of a particularly
vulnerable child, ejaculation, location of the offence (in that it occurred in the child’s home),
the presence of another child, and (according to the respondent) the commission of the
offence whilst under the influence of alcohol or drugs. We further agree that beyond the
lack of previous convictions there are no mitigating factors. Ms Ogg suggested that the
respondent had showed remorse. That is not clear from the background reports. She also
suggested that the respondent was of previous good character. Again, once it is appreciated
that previous good character is different from having no previous convictions, as the
Definitive Guideline explains, we have not seen evidence of good character. We accordingly
would accept, as the advocate depute submitted, that the preponderance of aggravating
factors would shift the sentence indicated by the Definitive Guideline upward from the
starting point of 13 years towards 15. There are further steps but the only one of relevance
in the present case is step 4, which requires the Court to take into account a guilty plea.
Recording offending and making an indecent image of a child
[34] What has been appealed is a cumulo sentence in respect of charges 002 and 003 on the
indictment. Charge 003 was of taking or permitting to be taken or making indecent
photographs of a child, contrary to section 52(1)(a) of the Civic Government (Scotland) Act
1982. This was done by the respondent making a video recording of his commission of the
acts referred to in charge 002 using his mobile phone. The advocate depute submitted that,
Page 22 ⇓
22
as well as constituting a separate offence this constituted an additional significant
aggravation of charge 002 to which the sentencing judge had paid insufficient regard.
[35] We see there to be considerable force in the advocate depute’s submission. Such is
the prevalence of use of mobile phones and such is the ease of making, retaining and
transmitting (or “sharing”) still and moving images using their associated technology that it
has become increasingly common for perpetrators of sexual offences or their associates to
record the commission of an offence, or to take photographs of the victim, on a mobile
phone (see eg T O’Malley, Sentencing Law and Practice (3rd edn.), paragraph 7-12); also S
Sandberg and T Ugelvik, “Why Do Offenders Tape Their Crimes? Crime and Punishment in
the Age of the Selfie”, 2017 British Journal of Criminology, Vol. 57, pp. 1023 – 1040). While so
doing may have the result that perpetrators thereby document their offending and generate
evidence which may incriminate them, as in the present case, the practice has what the
Court of Appeal (Criminal Division) described in Attorney General’s Reference (Nos. 3, 73 and
75 of 2010), [2011] 2 Cr App R (S) 100 as “pernicious” effects. O’Malley notes that a victim’s
suffering is intensified by the knowledge that such a recording or image exists and that little
can be done to control the use to which it may later be put or the extent to which it may be
circulated and, as the Chief Justice (Judge) observed in Attorney General’s Reference (Nos. 3, 73
and 75 of 2010), retaining an image is:
“a form of pressure to discourage any complaint … but also possibly for the
purposes of blackmail … Anyone can understand what a powerful lever may be
given to the criminal by his possession of photographs taken of the victim when, as
in these cases, she has been subjected to degrading treatment.”
The Chief Justice continued:
“We make it clear that from now onwards the taking of photographs should always
be treated as an aggravating feature of any case and in particular of any sexual case.
Photography in these circumstances usually constitutes a very serious aggravating
feature of the case” (paragraph [7](2)).
Page 23 ⇓
23
[36] We would adopt what was said in Attorney General’s Reference about the recording of
an image of sexual offending being an aggravation of the offence although in cases, such as
the present, where a contravention of section 52(3)(b) of the Civic Government (Scotland)
Act 1982 has also been libelled, it will be necessary, when determining upon an appropriate
sentence, to avoid double counting.
Decision
[37] The respondent pleaded guilty to two very serious offences. Other than the fact that
he had no previous convictions, there is little if anything by way of mitigation in the
respondent’s personal circumstances or his response to his offending as recorded in the
background reports. Were the Definitive Guidelines from the Sentencing Council of England
and Wales to be applied to the case the result would be a custodial sentence with a headline
figure well in excess of the five years selected by the sentencing judge. Against that, while
we did not find Ms Ogg’s review of previous cases of direct assistance, given their different
factual circumstances, overall these cases do suggest that, for whatever reason, the English
regime as expressed in the Definitive Guideline produces a level of sentence which is higher
than that which would be considered appropriate in Scotland in cases of this sort. Useful as
the English guidelines have been found to be as a crosscheck or comparator, such instances
para [20].
[38] We therefore have not taken the figure which would be produced by an application
of the Definitive Guideline as a benchmark for what would be the appropriate sentence in this
case. However, the factors which in the Definitive Guideline bring an offence into category
2A: the extreme youth of the child, the abuse of trust, the recording of sexual images and the
Page 24 ⇓
24
isolation of the victim; and what are then listed as potentially aggravating factors: targeting
of a particularly vulnerable child, ejaculation, location of the offence, presence of another
child and commission of the offence whilst the offender was under the influence of drugs,
are all considerations which require to be taken into account when assessing the relative
seriousness of an offence committed in Scotland.
[39] Looking to the cumulative effect of these various factors we have concluded that the
headline sentence selected by the sentencing judge was not only a lenient one but an unduly
lenient one. In concluding that it was unduly lenient we have been particularly influenced
by the fact that the respondent recorded a moving image of his rape of the complainer. That
this was to be regarded as a material aggravation (and therefore a factor pointing to a higher
sentence than would otherwise have been imposed simply for the rape) was enunciated in
Attorney General’s Reference (Nos. 3, 73 and 75 of 2010) and reiterated in the subsequently
published Definitive Guideline. That is a position that we would endorse. We do not see it to
be reflected in the sentencing judge’s disposal.
[40] We shall quash the sentence imposed by the sentencing judge. We shall substitute a
sentence of six years’ imprisonment in respect of charge 002, that being based on a headline
sentence of eight years discounted by the same percentage adopted by the sentencing judge.
We have not seen it necessary to impose an extended sentence. We shall impose a separate
sentence in respect of charge 003. We note that the maximum sentence for contravention of
section 52(3)(b) of the 1982 Act on conviction on indictment is three years’ imprisonment:
section 52(3)(b) . The sentence will be one of 24 months’ imprisonment, that being based on
a headline sentence of 32 months, again discounted by the percentage adopted by the
sentencing judge. As we have had regard to the appellant’s videoing his offending as an
aggravation of sentence in respect of charge 002, in order to avoid what would otherwise be
Page 25 ⇓
25
double counting, we shall order the sentence on charge 003 to be served concurrently with
the sentence on charge 002. The sentences will be backdated to the date selected by the
sentencing judge.