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URL: http://www.bailii.org/scot/cases/ScotHC/2021/2021_HCJAC_39.html
Cite as: [2021] HCJAC 39, 2021 SCCR 273, 2021 GWD 30-408, 2021 SLT 1247, [2021] ScotHC HCJAC_39

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2021] HCJAC 39

HCA/2021/247/XC

Lord Pentland

Lord Doherty

OPINION OF THE COURT

delivered by LORD PENTLAND

APPEAL AGAINST SENTENCE

KIERAN MALCOLMSON

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: Ogg, solicitor advocate; Paterson Bell (for Allans Solicitors, Lerwick)

Respondent: Prentice, Q.C., solicitor advocate, advocate depute; Crown Agent

24 August 2021

[1]

In this appeal against sentence the appellant was a secondary school teacher in the

Shetland Islands at the time he committed two offences. He was convicted after trial of

engaging in sexual activities with female pupils from the school where he was employed.

The charges were brought on indictment under section 3(1)(b) of the Sexual Offences

(Amendment) Act 2000 in the case of the first charge; and under section 42 of the Sexual

Offences (Scotland) Act 2009 in the case of the second. These statutory offences each require

it to be shown that the offender engaged in sexual activity with a person under the age of 18

towards whom he stood in a position of trust.

[2]

The first offence (charge 1) occurred in 2009 and extended to kissing the victim on

the mouth, handling her vagina, penetrating her vagina with his fingers and penetrating her

mouth with his penis. The victim was 17 and the appellant was almost 24. The second

offence (charge 3) was in 2018; it involved kissing the victim on the mouth and repeatedly

asking her to accompany him to a dark and secluded area. The victim was 16 and the

appellant was by then 33. The sentencing Sheriff imposed a sentence of imprisonment of

15 months on the first charge and a concurrent term of 6 months on the second.

[3]

In his report to this court the Sheriff explains that the evidence at the trial was that

the appellant met the two victims late at night or early in the morning at a location where

young people in the area, including pupils from his school, would tend to congregate after a

night out, most likely involving the consumption of alcohol. The appellant clearly knew this

to be the case. At the time of both offences the appellant was intoxicated by alcohol.

[4]

The circumstances of charge 1 involved the appellant challenging the victim to a race

up a steep hill, and the most serious aspects of the sexual behaviour took place once he was

alone with her after that race. The Sheriff observed, justifiably in our view, that there was an

element of premeditation in the appellant being alone with the victim.

[5]

The offence in charge 3 involved the appellant repeatedly suggesting to the victim,

after kissing her, that she should accompany him to a dark and secluded place. Again the

Sheriff observed (and we agree) that this suggested premeditation.

[6]

In mitigation before the Sheriff it was submitted that a custodial sentence was not

necessary. The appellant had no previous criminal convictions. He had the protection of

section 204 of the Criminal Procedure (Scotland) Act 1995. He had been suspended from his

employment for two and a half years pending trial. He was dismissed following the

convictions. He would never work again as a teacher. He shared the care of his young

daughter on an equal basis with his former wife. There had been no grooming of the

victims. The offences were described as being random and impulsive. The impact on the

victims had not been significant. The appellant had made a positive contribution to the local

community in various capacities. He had been assessed in the criminal justice social work

report as presenting a low risk of further offending. In the whole circumstances the

appropriate disposal was a community-based one.

[7]

The Sheriff approached the task of sentencing the appellant on the footing that the

offences had not been random and unconnected. The jury had convicted the appellant of the

two charges on the basis that he had been engaged in a systematically pursued course of

criminal conduct. The offences were so serious that the only appropriate disposal was a

custodial one. The Sheriff had regard to certain cases from England and Wales. We shall

discuss these in due course. He took account of the appellant's previous good character and

of a number of positive testimonials. He recognised that the appellant had been a good

teacher and that his career and his reputation had been ruined.

[8]

In support of the appeal Ms Ogg submitted that a custodial sentence was

inappropriate. If that submission was rejected, she argued that the overall length of the

custodial penalty was excessive.

[9]

Ms Ogg reiterated all the points that had been made in mitigation to the Sheriff. She

submitted that, properly understood, the offences had been committed impulsively whilst

the appellant had been under the influence of alcohol after he had been socialising. She

stressed that there had been no element of grooming. The age gap between the appellant

and the first victim had not been significant. The conduct reflected in charge 3 was a good

deal less serious than that in charge 1. The criminal justice social work report had been

favourable to the appellant. A custodial penalty should be a last resort. In any event, a

custodial term of 15 months was greater than was necessary to punish the appellant.

[10]

Ms Ogg drew our attention to two Scottish authorities, but neither of these is in

point. The first case, HMA v Collins [2016] HCJAC 102, was a Crown appeal against an

unduly lenient sentence for historic offences of rape perpetrated in secure residential u nits.

This court increased the sentence imposed by the trial judge from 6 years to 10 years

imprisonment. The second case, HMA v Cartwright [2001] SLT 1163, was an unusual one

where this court held that account should be taken of the fact that had the appellant been

charged at the time he sexually abused one of his pupils, he would have been prosecuted

under a statutory provision which carried a maximum penalty of 2 years imprisonment. We

have not derived any assistance from these cases.

[11]

Ms Ogg also referred to three cases decided in the Court of Appeal of England and

Wales: R v Hubbard [2002] 2 Cr. App. R. (S) 101; R v MacNicol [2003] EWCA Crim 3093; and

R v Battenbo [2004] EWCA Crim 2553. In each of these cases the appellants had been

teachers who were convicted of sexual offences against their pupils in breach of trust. The

circumstances of each of those cases were said to be more serious than those of the present

case. The sentences imposed on the appellant were, according to Ms Ogg, out of line with

those considered to be appropriate by the Court of Appeal for offences of this nature.

[12]

Ms Ogg also mentioned the Guidelines issued by the Sentencing Council of England

and Wales on sexual offences involving abuse of a position of trust ("Abuse of position of

trust: sexual activity with a child/abuse of position of trust: causing or inciting a child to

engage in sexual activity"). She submitted that whilst charge 1 fell within category 1 of the

Guidelines, the level of culpability fell within category B since there was an absence of

aggravating factors. Charge 2 was a category 3 offence. When the mitigating considerations

were taken into account, the Guidelines pointed towards a non-custodial disposal for

charge 1 as well as for charge 2.

[13]

We invited the Advocate Depute to make submissions on the principles which

should govern sentencing in cases of the present type. He submitted that the purpose of the

legislation was to protect young people against sexual exploitation by persons who held a

position of trust in relation to them. Teenage girls were particularly vulnerable to sexual

abuse by teachers with whom they might become infatuated. On the relevance of the issue

of consent, the Advocate Depute drew attention to what was said by this court in Rae v

HMA [2021] HCJAC 13 at para 22 in the somewhat different context of the strict liability

offence of having sexual intercourse with a child under the age of 13 (section 18 of the Sexual

Offences (Scotland) Act 2009). Consent was immaterial to the commission of such an

offence. The absolute nature of the offence ensured that children were protected against

themselves, their own actions, the effect of their developing maturity, and sexual curiosity,

as much as from the actions of others. That being so, consent was not a truly mitigating

factor. It was more appropriate to view the lack of consent as an aggravation of culpability.

[14]

The Advocate Depute submitted that the English sentencing guidelines were a useful

cross check. Charge 1 fell within harm category 1 as it involved digital penetration of the

vagina and penile penetration of the mouth. Charge 3 fell within harm category 3 as there

was no penetration and no touching or exposure of naked genitalia or breasts by or of the

victim. It was submitted that both offences should be regarded as falling under culpability

category B as none of the aggravating factors listed in category A was present. The

Advocate Depute added that whilst the factors in category A did not refer specifically to

intoxication of the offender as an aggravating consideration, it was obvious that intoxication

should be treated as an aggravation. The starting point for a category 1B offence was

1 year's custody with a range of 26 weeks to 18 months. The starting point for a category 3B

offence was a medium level community order with a range of low level community order to

high level community order.

[15]

The Advocate Depute also drew our attention to the case of W v HMA

[2016] HCJAC 44. There the appeal against conviction was allowed but this court said the

following at paragraph 26:

"Parliament has decided that where a relationship of trust exists such conduct

should constitute an offence regardless of whether the complainer consents or not.

Effectively, any consent is invalidated if the conditions in section 42 apply. Thus, a

complainer may consent, but the offence would nevertheless be committed..."

[16]

We begin our analysis by examining briefly the cases from the Court of Appeal of

England and Wales which were cited to us. In Hubbard the appellant, a secondary school

teacher, pleaded guilty to three counts of abusing a position of trust contrary to section 3 of

the 2000 Act. The victim was a girl of 15; she had personal problems. Sexual intercourse

took place on three occasions. The appellant was sentenced to 2 years' imprisonment on

each count concurrently, with an extension period of 2 years. The Court of Appeal upheld

the sentence. It regarded the case as a serious one. The object of the statutory provisions

was to control the activities of people who were in a position of responsibility and trust over

others.

[17]

In MacNicol a teacher pleaded guilty to two offences contrary to section 3 of the 2000

Act. He began a consensual sexual relationship with a 16 year old pupil. The relationship,

though serious, was short of intercourse. They exchanged cards and text messages. When

arrested the appellant made full and frank admissions. He also admitted having intercourse

with another 16 year old girl at the school. That relationship had begun with exchanges of

text messages; it culminated in a single act of intercourse, which was fully consensual. The

appellant was sentenced to concurrent terms of 15 months' imprisonment with an extended

licence period of 33 months. The Court of Appeal declined to interfere with the sentences.

[18]

In Battenbo the appellant pleaded guilty to two counts of sexual assault and one

count of sexual intercourse with a girl under the age of 16. She had been a pupil at the

school where the appellant was a science teacher. The sentencing judge imposed a total

period of 2 years' imprisonment. On appeal this was reduced to 12 months. Only one girl

had been involved, the amount of sexual activity was relatively limited, and the sexual

offending all took place with the full consent and encouragement of the victim.

[19]

It is not easy to draw a direct comparison between the circumstances which arose in

these English cases and those of the present case. We note that Hubbard involved full sexual

intercourse on three occasions; it may therefore be regarded as a more serious case, but it

attracted a longer sentence than that imposed on the appellant. MacNicol resulted in a

sentence of the same length as imposed on the appellant, but it appears to have involved

some degree of grooming and there was a single episode of full intercourse with one victim

and serious sexual activities with the other. It too may be seen as a somewhat more serious

case than the present one. As for Battenbo there was only one victim and relatively limited

sexual activity. The sentence was 3 months lower than that imposed on the appellant.

While the comparison exercise was of some limited assistance, each case must turn on its

own facts.

[20]

As the Sheriff aptly observed, both offences in the present case involved serious

breaches of trust by the appellant. The sexual activity in charge 1 included digital

penetration of the victim's vagina and penile penetration of her mouth. At the time he

committed both offences the appellant was under the influence of alcohol. Annex A to the

Sentencing Council for Scotland's "The Sentencing Process" Guideline and the Sentencing

Council for England and Wales "Overarching Guidelines" both recognise that a

perpetrator's voluntary intoxication can be an aggravating factor. We have no doubt that in

the present case the appellant's intoxication was a significant aggravating feature.

[21]

As we have already mentioned, we consider that the Sheriff was well-founded in his

view that the offences involved some degree of premeditation on the part of the appellant.

In the case of charge 1 he engineered a situation in which he found himself alone with the

victim. So far as charge 2 is concerned, the appellant repeatedly invited the victim to

accompany him to a secluded place after he had kissed her.

[22]

It is important also to note that the appellant has expressed no remorse for what he

did. He did not admit the offences and he continues to protest his innocence. The victims

required to give evidence. In these respects his position differs from the positions of the

appellants in the English cases to which we have referred.

[23]

On the other hand, we accept that there was no grooming of either victim. We note

also that at the time of the offence in charge 1 the appellant was not yet 24 and was therefore

still a relatively immature young man, and that the age difference between him and his

victim was less than 7 years.

[24]

The purpose of the statutory offences of which the appellant stands convicted is to

protect impressionable young people under the age of 18 from the possible consequences of

infatuation with their teachers and others who are entrusted with their care and welfare.

The aim of the legislation is to control the sexual activities of persons who hold positions of

trust and who have responsibility for children. Regrettably, it is a not uncommon feature of

such cases that the offender is a person, like the appellant, who is otherwise of good

character.

[25]

We note that the maximum penalty prescribed by the legislature for these offences is

imprisonment for 5 years. This is an indication of the seriousness with which Parliament

views conduct of the type in which the appellant engaged. Young persons must be

protected from sexual abuse and exploitation by persons entrusted with their care, welfare

and education. Taking account of the aim and purpose of the legislative provisions, and all

of the other relevant factors, we are satisfied that the Sheriff was right to take the view that

the nature and gravity of the offences, taken together, could only properly be marked by the

imposition of a custodial sentence.

[26]

We are persuaded, however, that the length of the custodial term selected by the

Sheriff was excessive. Having regard to the appellant's conduct and his culpability, and all

of the aggravating and the mitigating factors, we consider that the appropriate period of

imprisonment is one of 12 months. We take comfort from the fact that that sentence appears

to be in line with (i) the sentences in the English cases to which we were referred (once the

differences in circumstances are taken into account); and (ii) the Guidelines issued by the

Sentencing Council of England and Wales.

[27]

We shall accordingly quash the sentences imposed by the Sheriff and substitute for

them a single cumulo sentence of 12 months' imprisonment.