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Cite as: [2022] ScotHC HCJAC_24, [2022] HCJAC 24

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2022] HCJAC 24

HCA/2022/000120/XC

Lord Doherty

Lord Matthews

OPINION OF THE COURT

delivered by LORD MATTHEWS

APPEAL AGAINST SENTENCE

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: Ogg, solicitor advocate; Paterson Bell, Edinburgh

Respondent: McTaggart AD; Crown Agent

21 June 2022

[1]

This is an appeal against a sentence of imprisonment for 27 months following the

appellant's plea of guilty at a continued First Diet to a contravention of section 42 of the

Sexual Offences (Scotland) Act 2009, an offence known as sexual abuse of trust.

[2]

The sentence would have been one of imprisonment for 3 years but for the timing of

the plea.

[3]

The appellant, born in 1979, was a well-respected teacher at a school in Glasgow and

between 9 December 2016 and 14 April 2019 she engaged in sexual activity with a female

student between the ages of 15 and 18. The activity involved kissing, cuddling, touching,

digital penetration of the complainer's vagina, the performance of oral sex on the

complainer and acts performed on the appellant by the complainer.

[4]

The appellant was an assistant housemistress and amongst her duties was the

provision of pastoral care to students. The complainer became upset in a class in

December 2016 and spoke to the appellant, disclosing that she felt alone. The appellant

offered her support, gave the complainer her school email address and told her she could

contact her outwith school hours. Multiple emails were exchanged thereafter and a close

personal relationship quickly developed. The appellant would end her emails with kisses

and they would state that they loved each other, exchanging heart and kissing emojis.

[5]

In January 2017 the complainer contacted the appellant because she was upset after

falling out with a friend. The appellant picked her up in her car and they chatted, the

appellant saying that they probably should not be meeting up. The complainer felt special

knowing that the appellant was prepared to break the rules for her and when she left the car

the appellant kissed her on the neck.

[6]

They met up regularly on Sundays after that. The appellant would take the

complainer to quiet locations where they would kiss using their tongues and touch each

other over their clothing.

[7]

In February 2017 before the complainer went on holiday with her parents the

appellant sent her a text telling her she was a special, wonderful young woman, calling her

"my angel" and "sweetheart" and telling her she loved her.

[8]

Ten days after that the complainer sent the appellant a selfie wearing a bra and

shorts. This was unsolicited.

[9]

In March 2017 they exchanged mobile phone numbers. After this they were kissing

in the appellant's car when the appellant digitally penetrated the complainer's vagina and

on another occasion she performed oral sex on the complainer. This was all consensual.

[10]

In July 2017 the complainer spent two nights at the appellant's flat and they engaged

in digital penetration and oral sex. Some weeks later the appellant moved to another

property and the complainer would attend on a regular basis, usually on a Sunday. At times

she would stay overnight. The appellant would sometimes pay for her taxi. When together

they would regularly kiss and on a couple of occasions engaged in digital penetration. The

complainer often said that she wanted to tell her friends and family about her sexuality but

the appellant discouraged her as people would put two and two together about their

relationship.

[11]

The relationship ended when the complainer left school to go to university in 2019

but they kept in touch. The appellant visited her in September 2019 and they engaged in

consensual sexual contact in a hotel.

[12]

In June 2020 the complainer finally broke with the appellant in a telephone call but

the appellant struggled with that and displayed manipulative behaviour by making

repeated calls and threats to harm herself. This, along with the confusion caused by the

relationship, caused the complainer significant stress and she was admitted to hospital for

3 days, losing 19 lbs in weight. In September 2020 she disclosed information to her doctor

and this in turn led to police involvement. At interview and in response to charge the

appellant denied any sexual activity with the complainer.

[13]

The submissions in support of the appeal largely mirrored those made in mitigation

before the sheriff.

[14]

The appellant had no previous convictions. Shortly before the beginning of the

relationship with the complainer, she had emerged from an abusive relationship and was

herself at a low point and in a vulnerable position.

[15]

She had been teaching for over 20 years and a number of impressive references

testified powerfully to the positive impact she had had on the lives of a great many young

people, often going above and beyond the call of duty to help them. There was no

suggestion of any improper involvement with any other student. That career, which had

been her life, was now lost to her. She had been having suicidal thoughts, as was confirmed

by her general practitioner and her current partner.

[16]

She recognised the impact of her offending on the complainer and her family and

was remorseful. There was a low risk of future offending.

[17]

The sheriff had placed too much weight on a comparison with the case of

Malcolmson v HM Advocate [2021] SCCR 273, which was cited in mitigation, rather than

looking at the circumstances of this case and of the appellant herself. It was accepted that

the offence was serious but in all the circumstances a non-custodial disposal would have

been appropriate. For the equivalent offence in England and Wales the starting point in the

Definitive Guideline for a category 1A offence, which this plain ly was, was imprisonment

for 18 months, with a range between 1 and 2 years imprisonment. However, that was before

mitigation was taken into account. Where there was sufficient prospect of rehabilitation a

community order could be a proper alternative to custody. In any event the custodial

sentence was excessive.

[18]

In all the circumstances such an order should have been imposed on the appellant.

[19]

We reject that submission. While each case has to be determined on its own merits, it

is clear from Malcolmson and from the earlier case of HM Advocate v Brough 1996 SLT 1015,

that in a case of this nature involving intimate sexual contact, a custodial sentence will be

well-nigh inevitable unless the circumstances are truly exceptional. That is not the case here.

As was said in Malcolmson at para [24], it is a not uncommon feature of cases like this that

the offender is a person who is otherwise of good character. At the time of the offence the

appellant was a mature woman and a very experienced teacher. The complainer had sought

her assistance in her pastoral role so the position of trust was clear and indeed enhanced.

Thereafter there was a significant degree of planning and a high level of grooming resulting

in an improper intimate relationship, which lasted for a considerable time. The appellant

engineered situations where she was alone with the complainer in her car, her home, and

elsewhere. She knew it was wrong and could have taken steps to end the relationship at any

time but chose not to. While the appellant has expressed remorse, we note that in speaking

to the author of the Criminal Justice Social Work Report, she attributed a large measure of

responsibility for what happened to the complainer, which is a subversion of the true

position.

[20]

That having been said, there is force in the submission that the sentence was

excessive. Having regard to all the circumstances, and bearing in mind the Definitive

Guideline as a cross-check, we consider that the appropriate headline sentence would have

been one of imprisonment for 21 months.

[21]

We shall accordingly allow the appeal to the extent of quashing the sentence of

imprisonment of 27 months and imposing in its place a sentence of imprisonment of

16 months, reduced from 21 months on account of the timing of the plea.