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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> VE, APPEAL AGAINST SENTENCE BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_12 (09 February 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_12.html
Cite as: 2018 SLT 246, [2018] ScotHC HCJAC_12, [2018] HCJAC 12
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Lord Menzies
Lord Turnbull
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2018] HCJAC 12
HCA/2017/000487/XC
OPINION OF THE COURT
delivered by LORD MENZIES
in
APPEAL AGAINST SENTENCE
by
VE
against
HER MAJESTY’S ADVOCATE
Appellant
Respondent
Appellant: CM Mitchell; Paterson Bell Solicitors for Amer Anwar, Glasgow
Respondent: M Hughes, AD; Crown Agent
9 January 2018
[1] The appellant was found guilty after trial at the High Court of Justiciary at Glasgow
on 23 June 2017 of two offences in terms of the Sexual Offences (Scotland) Act 2009.
Charge 1 was a charge of repeated statutory rape of a girl aged 5 and 6 over an 18 month
period contrary to section 18 of that Act. Charge 2 was a charge of a sexual assault by
touching a girl aged 7 and 8 over the same period contrary to section 20 of that Act. The
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complainers were sisters. The appellant who has lived in Scotland since 2012 was aged 14 at
the date of the offences and 15 at the date of conviction. After preparation of background
reports, on 2 August 2017 the appellant was sentenced to 6 years detention in respect of
charge 1 and 1 year’s detention in respect of charge 2, these sentences to be concurrent with
one another. He now appeals to this court against sentence.
[2] It is accepted on behalf of the appellant that the offences were sufficiently serious
that only a custodial sentence was appropriate, but it was argued on behalf of the appellant
that a total of 6 years detention was excessive. There were two particular arguments
advanced in support of this submission. First, that the judge erred in stating that the
offences were carried out after a “level of planning had taken place in gaining the trust of
the victims, isolating them within his home and perpetrating the offences while in a positon
of trust”. In reality, Ms Mitchell for the appellant argued, the appellant was a 14 year old
boy whose sister was friendly with the two complainers who came to play in their house.
There was nothing to support a suggestion of a significant degree of planning and this was
not a situation akin to that of an adult engineering a situation in which he can be alone with
children. Second, the trial judge failed to give adequate weight to the youth of the appellant
and that the need for punishment and retribution was less in the case of a child offender
than the need for rehabilitation. For these reasons Miss Mitchell submitted that the sentence
of 6 years detention in respect of charge 1 was excessive and that this court should substitute
a shorter period of detention.
[3] We consider that there is force in each of these submissions. With regard to the first
we do not consider that it is fair to categorise the appellant’s offending as displaying any
real level of planning or gaining the trust of the complainers. They were friends of his sister
and came round to his house to play. This was not engineered by the appellant. There is
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nothing to support any suggestion of planning or premeditation. This is not akin to a
situation in which an adult arranges matters so as to be alone with a child. Moreover the
appellant was merely the oldest of a group of children – that was the extent of any position
of trust which he held. We consider that the trial judge attached too much weight to issues
of planning and trust.
[4] The considerations to be taken into account when sentencing a child were discussed
[2006] 1 AC 159 were adopted. In particular when sentencing a child regard must be had to the
best interests of that child as a primary consideration, under reference to the United Nations
Convention on the Rights of the Child, Article 3.1. In delivering the Opinion of the Court in
Adam McCormick Lady Dorrian observed at paragraph [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 [2012] SCCR 57, 32 JC 115:
‘[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
under reference to the United Nations Convention on the Rights of the Child,
Article 3.1). Regard must be had also to the desirability of the child's
reintegration into society (Article 40).’”
Lady Dorrian went on to consider the dicta of Lady Hale in R(Smith) v Secretary of State for the
Home Department and in particular paragraph [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
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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. “
Lady Dorrian went on to observe at paragraph [6] in McCormick:
“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.”
[5] It does not appear to us that the trial judge in the present case has had adequate
regard to these considerations. In this respect we consider that he too has erred.
[6] For these reasons we are satisfied that the sentence of 6 years detention in respect of
charge 1 is excessive in the all the circumstances of this case. We shall allow the appeal,
quash the sentence of 6 years detention in respect of charge 1 and substitute a sentence of
3 years and 9 months detention on that charge backdated to the same date as the original
sentence. The sentence of 1 year’s detention on charge 2 concurrent with that on charge 1
will remain unchanged.