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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> SINCLAIR, APPEAL AGAINST SENTENCE BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_34 (29 May 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_34.html
Cite as: [2018] HCJAC 34, [2018] ScotHC HCJAC_34
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Lord Menzies
Lord Glennie
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2018] HCJAC 34
HCA/2018/000107/XC
OPINION OF THE COURT
delivered by LORD MENZIES
in
APPEAL AGAINST SENTENCE
by
DOUGLAS SINCLAIR
against
HER MAJESTY’S ADVOCATE
Appellant: A Ogg (sol adv); Capital Defence Lawyers
Respondent: M Hughes, AD; Crown Agent
Appellant
Respondent
29 May 2018
[1] The appellant was sentenced at Perth Sheriff Court on 14 February 2018 in relation to
an offence of contravention of section 28 of the Sexual Offences (Scotland) Act 2009
involving a boy aged about 14 at that time. The sheriff imposed an extended sentence in
total of 66 months. The custodial term of that sentence was 4 years which was discounted
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2
from a starting point of 5 years to reflect the early plea of guilty, and the extension period
was 18 months.
[2] Amongst other factors in selecting that sentence the sheriff had regard to the previous
convictions of the appellant which included a conviction on indictment in 2003 for
contravention of section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995, that is
sex with an underage girl.
[3] It was argued before us that the sheriff had misapprehended the early release
provisions which are now in force and that this error was clear when one looked at
paragraphs 49 and 53 of the sheriff’s report and that the sheriff appeared to have selected the
sentence which she did on the view that the Moving Forward Making Changes programme if
started in relation to the appellant whilst he was in prison would not be likely to be finished
before he was released on early release provisions, and accordingly it was necessary to impose
the custodial term which she did impose and an extension period thereafter. We were
provided with an email from a relevant officer of the local authority indicating that if the
appellant started the MFMC programme in a prison setting and had not completed the course
at the point of release he would be fast tracked onto the Tay project community based MFMC
programme. It was further submitted that the requirements for an extended sentence in terms
of section 210A of the 1995 Act were not made out in this case.
[4] We are persuaded that in all the circumstances of this case it appears that the sheriff
may have misapprehended the current situation with regard to early release provisions and
in light of that and in all the other circumstances of the case we consider that the custodial
term which she selected, namely 4 years discounted from 5, is indeed excessive.
[5] We shall accordingly quash the sentence which she imposed and substitute a custodial
term of 3 years imprisonment that being discounted from a starting point of 4 years to reflect
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the early plea. We are, however, not persuaded that it is inappropriate to impose an extended
sentence in this case particularly having regard to the effect that our decision on the custodial
term will have. So we shall reduce the custodial term from 4 years to 3 years but we shall
maintain the extension period of 18 months which was imposed by the sheriff. The
consequence is that instead of 5 and a half years in total the sentence will be 4 and a half years
in total and that will be backdated, as was the sheriff’s sentence, to 16 January 2018.