Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_62.html
Cite as: [2018] ScotHC HCJAC_62, [2018] HCJAC 62

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Lord Menzies

Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2018] HCJAC 62

HCA/2018/000344/XC

OPINION OF THE COURT

delivered by LORD TURNBULL

APPEAL AGAINST SENTENCE

ADAM TONKIN

against

HER MAJESTY’S ADVOCATE

Appellant

Respondent

Appellant: Gravelle (sol adv); Paterson Bell Solicitors, Edinburgh for Beltrami & Co., Glasgow

Respondent: H Carmichael, AD; Crown Agent

18 September 2018

[1] The appellant Adam Tonkin is now 26 years old. He pled guilty by section 76

procedure to an indictment which narrated that he engaged in unlawful sexual activity with

a 14 year old girl which included sexual intercourse on two occasions. Despite the fact that

the case was dealt with by procedure designed to expedite the process, the offences in fact

took place between February 2016 and March 2016, when the appellant was 24 years old.

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The time delay appears not to have been explained in the facts presented to the sentencing

sheriff. The appellant has no other convictions.

[2] Having obtained a Criminal Justice Social Work Report the sentencing sheriff

imposed an extended sentence with a custodial part of 12 months imprisonment and an

extension period of 12 months. The custodial part would have been 18 months but for the

appellant’s early plea.

[3] The appellant has appealed against the sentence imposed but the appeal is restricted

to the imposition of an extended sentence. On the appellant’s behalf criticisms were

advanced concerning the sentencing sheriff’s reasons for deciding to impose an extended

sentence. Attention was drawn to what was said at page 5 of the report, where the sheriff

stated that she wished the appellant to be subject to post-release supervision. It was

observed that, on its own, this would not be sufficient to entitle the imposition of an

extended sentence and reference was made to the case of Wood v HM Advocate 2017 JC 185.

[4] It was also observed that in any event the appellant would be subject to a period of

post-release supervision in light of the provisions of section 1AA of the Prisoners and

Criminal Proceedings (Scotland) Act 1993. This is not something which has been

acknowledged in the sheriff’s report. Attention was drawn to the terms of section 210A of

the Criminal Procedure (Scotland) Act 1995 in which it is provided that an extended

sentence may only be imposed if the court considers that the period for which the offender

would otherwise be subject to licence would not be adequate for the purpose of protecting

the public from serious harm from the offender. It was submitted that at no stage in the

sheriff’s report does she address this test or explain why she concluded that the period for

which the appellant would otherwise be subject to licence would be inadequate.

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[5] Various other criticisms were also advanced in the written case and argument of the

sheriff’s approach to sentencing. No account appears to have been taken in the assessment

of risk posed by the appellant of the fact that the offending conduct occurred two years

before the imposition of sentence and that the appellant had kept out of trouble in that

period. A number of criticisms were also advanced in the written case and argument

concerning the Criminal Justice Social Work Report. It appeared from the content of that

report that the authors had not been provided with a summary of the evidence or a copy of

the Crown narrative. The two authors of the report proceeded upon the basis that the

appellant had pled guilty to sexual assault. His conduct was described throughout the

report as sexual assault. On page three the authors observed that the sexual assault which

he perpetrated was illegal also in terms of the complainer’s age, in fact the child’s age

reflected the sole element of criminality. It was therefore plain, it was submitted, that the

authors had proceeded upon an important misunderstanding as to the nature of the

criminality which the appellant had displayed. It was submitted that this undermined the

value which the sentencing sheriff could place on the risk assessment and the other views

expressed by the authors of the report.

[6] It is important to recognise that the sheriff made plain in her report to this court that

she appreciated that the appellant had not pled guilty to an offence of sexual assault and she

appreciated that the terminology in the Criminal Justice Social Work Report was

inappropriate. Nevertheless, the sentencing sheriff did take account of certain parts of the

content of that report. The statutory provision which authorises the imposition of an

extended sentence requires the court to take account of a report of this sort and it is

unfortunate that in this case the narrative of events appears not to have been provided to the

social workers tasked with the exercise. As a consequence it is correct to observe that they

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appear to have laboured under an important misunderstanding as to the nature of the

offending to which the appellant pled guilty. We agree that in these circumstances the value

of the report to the sentencing sheriff was diminished.

[7] We also consider that there is some merit in the concerns identified as to the

sentencing sheriff’s overall approach. She does not explain that she took account of the fact

that the appellant would be released on licence in any event, she does not at any stage of her

report refer to the test provided for by section 210A of the 1995 Act and she does not explain

why the period for which the appellant would be subject to licence would not be adequate.

Furthermore, the sheriff does not explain why she concluded that the public required the

ongoing form of protection she identified, despite the lengthy passage of time between the

commission of the offence and the date of the sentencing.

[8] In all of these circumstances we are persuaded that the appeal ought to be granted

and we shall quash the extended sentence imposed. In its place we shall impose a sentence

of 12 months imprisonment reduced from the period of 18 months to reflect the guilty plea

and sentence will date from the same date selected by the sheriff.