Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_17.html
Cite as: [2018] ScotHC HCJAC_17, 2018 SCCR 104, [2018] HCJAC 17, 2018 GWD 7-96

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Lady Paton

Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2018] HCJAC 17

HCA/2017/000674/XC

OPINION OF THE COURT

delivered by LORD TURNBULL

APPEAL AGAINST SENTENCE

SEAN KELLY

against

HER MAJESTY’S ADVOCATE

Appellant

Respondent

Appellant: C Findlater; John Pryde & Co (for the Glasgow Law Practice)

Respondent: D Small, AD, ad hoc; Crown Agent

6 February 2018

[1] The appellant Sean Kelly is now aged 50. On 28 September 2017, he pled guilty, in

the Sheriff Court at Glasgow, to a charge of contravening sections 28 and 30 of the Sexual

Offences (Scotland) Act 2009 by engaging in sexual activity with a boy, KM. The offences

were committed between 1 January 2015 and 2 July 2015, when the victim was aged 14 years

and the appellant aged 47. The conduct consisted of the victim penetrating the mouth and

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anus of the appellant with his penis and the appellant penetrating the victim’s mouth with

his penis.

[2] After adjourning the diet for the preparation of a criminal justice social work report,

the sheriff imposed an extended sentence of 28 months imprisonment with a custodial

element of 19 months. The circumstances of the offending were that the appellant came to

know the victim through frequenting a shop where the victim had a part-time job. They

came to spend time together on a regular basis and each described themselves as being in a

relationship. It was kept secretive though at the appellant’s request.

[3] The circumstances made it plain that the appellant had engaged in grooming

conduct and had invested a significant amount of thought and planning into his conduct.

The victim was a vulnerable young boy whose parents were both dead and who was looked

after by his older brother. The author of the criminal justice social work report noted that

the appellant displayed evidence of minimisation and justification and did not take full

responsibility for his conduct. He showed no insight into the damaging impact of his

behaviour. He also noted that the appellant appeared to hold distorted views and attitudes

about children’s sexuality and more specifically about the victim. Having taken account of

the whole circumstances, including the information provided in the report, the sheriff

viewed the appellant’s conduct as constituting a very serious offence.

[4] On the appellant’s behalf, in oral submissions and in the written case and argument

tendered in advance of the hearing, it was argued that a non-custodial sentence ought to

have been imposed. Failing that, it was submitted that the custodial sentence selected was

excessive and that in any event the sheriff ought not to have imposed an extended sentence.

It was pointed out that the appellant appeared before the sheriff as a first offender. It was

also explained that he had a full and productive history of working which had only ended

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when he gave up full-time employment to care for his terminally ill mother. He is now

receiving treatment for an anxiety disorder and depression and is suffering from

fibromyalgia which causes generalised pain and requires him to use crutches due to poor

mobility. It was submitted that the appellant’s personal circumstances, his candid approach

in discussion with the author of the social work report, and the low level of risk identified

were all mitigatory factors which had not been given sufficient weight. When viewed

alongside the protection afforded to the appellant by section 204(2) of the 1995 Act it could

be said that the imposition of a custodial sentence was excessive.

[5] The sentence in the present case was imposed after the appellant’s plea of guilty to

one only of the charges which he faced was accepted. In the report which he prepared for

this court the sentencing sheriff explains how he calculated the sentence which he had in

mind to impose. In the first paragraph of his report he states:

“The custody part of my sentence is 19 months with an extension period of 9 months.

I arrived at the aggregate sentence of 28 months by reducing the headline sentence

from 36 months to reflect the plea of guilty.”

It appears to us that the sheriff has erred in his approach to the calculation of the

appropriate sentence. He seems to have identified an overall headline sentence to which he

has applied a discount and then allocated the resulting period into the custodial and the

extension parts. Apart from anything else, the result is that the extension period selected for

public protection has been discounted. That conclusion is reinforced by what the sheriff

says in paragraph 9 of his report, where he informs us that the extension period would have

been 12 months but for the discount which he afforded. In the case of Jordan v HM Advocate

2008 SCCR 618 at paragraph 12, the court explained that:

“It is not appropriate to allow a discount from an extension period which is required

for the purpose of protecting the public from serious harm from the offender: see the

Opinion of the Court in Du Plooy v HM Advocate at paragraph [19]. Indeed where, as

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here, a court decides that an extended sentence is required, the length of the

extension period should only be determined once the discounted custodial term has

been determined”

The same view was expressed in Gemmell and Others v HM Advocate 2012 SCCR 176 by the

Lord Justice Clerk (Gill) at paragraph [66], Lord Osborne at paragraph [130] and Lord Eassie

at paragraph [142].

[6] Furthermore, we are not satisfied that the sheriff applied the correct test in

determining that an extended sentence ought to be imposed. At paragraph 8 of his report he

refers to the observations in the criminal justice social work report concerning the appellant

holding distorted views and states:

“In view of these remarks I considered that an extended sentence was appropriate

and would allow post-release work and supervision which I considered would be in

the public interest”.

[7] Section 15 of the Management of Offenders etc. (Scotland) Act 2005 amended

section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 with the effect that

all short-term prisoners sentenced to a period of 6 months or more, who are as a

consequence of conviction subject to the notification requirements of Part 2 of the Sexual

Offences Act 2003, are entitled to be released on completion of one-half of their sentence but

remain subject to licence in the community for the remainder of their whole sentence and

can be recalled. The present appellant would therefore have been under supervision on

release and subject to post-release work whether an extended sentence was imposed or not.

[8] Section 210A of the Criminal Procedure (Scotland) Act 1995 makes it plain that the

only circumstances in which an extended sentence can be imposed are where the court:

“considers that the period (if any) for which the offender would, apart from this

section, be subject to a licence would not be adequate for the purpose of protecting

the public from serious harm from the offender”.

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[9] The sheriff does not refer to the statutory test in his report and it will be noted that

the test is not whether it is in the public interest that the offender be subject to a prolonged

period of licence. The nature of an extended sentence was discussed in the case of DS v HM

Advocate [2017] HCJAC 12 at paragraph 21 where the court said:

“An extended sentence has a considerable penal effect, given the power to revoke the

licence and recall the offender to prison (cf Robertson v HM Advocate 2004 JC 155 at

para [30]). Its purpose is to allow the court to make provision for public protection

where that is necessary while not imposing a custodial sentence, which from other

perspectives, might be disproportionate. Accordingly, before it can impose an

extended sentence, the court must have formed the view that when the offender

comes to be released from the determinate sentence which it is minded to pass, he

will still present a risk of serious harm to the public”.

[10] The sheriff’s report in the present case does not disclose that he applied his mind to

the question in the manner explained in DS v HM Advocate. We are therefore satisfied that

the sheriff misdirected himself in law in selecting an extended sentence and we shall quash

the sentence imposed. The question of what the appropriate sentence should be now falls to

this court to determine. The appellant is a first offender and has the benefit of section 204(2)

of the 1995 Act. Nevertheless, we are satisfied that the offending to which he pled guilty

was of such gravity that only a custodial sentence would be appropriate. His conduct

reflected an abusive breach of trust by an intelligent and informed adult of a teenage boy

and it had the hallmarks of grooming, thought and planning which were referred to earlier

in this opinion.

[11] We have taken account of the risk assessment undertaken by the author of the

criminal justice social work report and we note that he was assessed as being in the

minimum risks category using the LS/CMI tool and at low risk for sexual offence

reconviction using the Risk Matrix 2000 tool. We also note that in the two years which

passed between the victim disclosing matters to the police and the appellant’s trial diet he

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was in no other trouble. As pointed out, he had a good and long record of employment. In

all of these circumstances, in our opinion, the test for the imposition of an extended sentence

is not met.

[12] Taking account of the whole circumstances, we shall impose a headline sentence of

30 months imprisonment which we will restrict in light of the guilty plea to a period of

20 months to date from 23 November 2017. The appellant will be subject to the notification

requirements provided for by the Sexual Offences Act 2003 and the case will also be referred

to the Scottish Ministers under section 7 of the Vulnerable Groups (Scotland) Act 2007.