Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_36.html
Cite as: [2018] ScotHC HCJAC_36, [2018] HCJAC 36

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Menzies

Lord Turnbull

OPINION OF THE COURT

[2018] HCJAC 36

HCA/2018/159/XC

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in the Crown appeal against sentence by

HER MAJESTY’S ADVOCATE

Appellant

against

JOHN WILLIAM BARBOUR

Respondent

Appellant: A Prentice QC (sol adv) AD; the Crown Agent

Respondent: M Stewart QC; Faculty Services Ltd (for Lindsay & Kirk, Solicitors, Aberdeen)

13 June 2018

General

[1] On 7 February 2018, after a trial at the High Court in Edinburgh, the respondent was

convicted of three charges and sentenced to 4 years imprisonment. The first charge was one

of lewd, indecent and libidinous practices occurring in 1979, when the respondent was aged

between 13 and 14 and the complainer was only 4 or 5. The libel was that on various

occasions he, amongst other things, pulled the pants of the complainer down, digitally

penetrated her vagina and caused her to masturbate him. The complainer had essentially

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been intercepted by the respondent on frequent occasions when she was simply out on a

Sunday morning to collect a newspaper. The second charge related to events in 1984 to

1986, and involved lewd, indecent and libidinous practices towards a second complainer,

who was then aged about 5 to 7. The respondent was aged between 18 and 21. The

behaviour included digital vaginal and anal penetration, causing the complainer to

masturbate him and penile penetration of her mouth and anus. The third charge involved

the same complainer and was that, on various occasions, the respondent raped the

complainer to her injury. This behaviour occurred when the respondent was a lodger at the

complainer’s mother’s house. On frequent occasions, he removed the complainer from her

bed and took her through to the bedroom which he shared with her younger brother, who

was then aged about 2, and perpetrated the acts libelled.

Personal circumstances

[2] The respondent continued to deny the offences at trial. His personal circumstances

were that he had been married for some 25 years. He and his wife had brought up his wife’s

three children, who were now in their 20s and 30s, and a child of their own, now also in her

20s. The respondent had worked for some 30 years as a sales manager for Grampian

Leisure, who were involved in the provision of arcade machines. He had no previous

convictions.

[3] The Criminal Justice Social Work Report narrated that it was difficult to ascertain the

likelihood of re‐offending, given that the offences had been committed more than 30 years

ago. It was thought that any risk could not be managed within the community. The report

recommended that the respondent undertake “programmatic” work within a secure

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environment before his risk of re‐offending and threat to the community could be assessed.

There was no reason to suggest that he was now a high risk to the public.

The trial judge’s reasoning

[4] The trial judge took into account that, at the time of the first charge, the respondent

had been a child and that over 30 years had elapsed since the last of the offences in the

second and third charges. He sought to apply guidance from Greig v HM Advocate 2013 JC

115, to the effect that, although the respondent had to be sentenced as an adult offender, that

sentence had to take into account his age, and hence relative immaturity, at the time of the

offences. The fact that, during the period since the offences, the respondent had made a

positive contribution to society was important. Protection of the public was not a material

consideration, as it would have been had sentencing occurred shortly after the offending.

The judge had regard to E(V) v HM Advocate 2018 SLT 246, in which the appellant had been

aged 14 at the date of the offences and had been convicted of the rape of a girl aged between

5 and 6, over an 18 month period, and sexual assaults on another girl, aged 7 and 8, over the

same period. The court quashed the sentence of 6 years detention on the rape charge and

substituted one of 3 years and 9 months, with a concurrent sentence of 1 year remaining for

the assaults.

Submissions

[5] The appellant maintained that 4 years was unduly lenient. Irrespective of the

respondent’s age at the time of the offences, and the passage of time since they had been

committed, the abhorrent and seriousness nature of the crimes, committed against girls of

such young age, required to be reflected in the sentence (see M(H) v HM Advocate

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[2018] HCJAC 26 at paras [3] and [6]). The judge had given undue weight to the respondent’s age

at the time of the offences, the passage of time since the offences, the respondent’s lack of

offending, his full pro‐social life since the offences and the decreased need for public

protection.

[6] The respondent supported the reasoning of the trial judge, who, it was argued, was

uniquely placed to assess the matter. He had considered the CJSWR. The Crown had

attempted to deconstruct the offences and apply precedent to the constituent elements

rather than looking at the totality of the offending. Although the sentence could be said to

have been at the lower end of the available range, it was not unduly lenient.

Sentence

[7] The test to be applied by this court, before it can interfere with a sentence of a trial

judge is, of course, not just that the sentence was lenient, but that it was unduly so in the

sense that it fell below the range of sentences normally regarded as appropriate for offences

of the relevant kind. The court is not satisfied that this test has been met. The trial judge

had the advantage of considering the whole circumstances and seeing and hearing the

witnesses, including, notably, the complainers. He was able to evaluate the victim impact

statements. His report is a well‐reasoned one, which justifies in some detail the approach

which he took and the reasons for it. Although this sentence was at the lower end of the

appropriate range, it was still within that range. The appeal is accordingly refused.