Appeal Against Sentence By Adam Mccormick Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lady Dorrian |
| Neutral Citation | [2016] HCJAC 50 |
| Date | 12 April 2016 |
| Docket Number | HCA/2016 |
| Published date | 03 June 2016 |
| Court | High Court of Justiciary |
| Year | 2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 50
HCA/2016/000038/XC
Lady Dorrian
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY DORRIAN
in
APPEAL AGAINST SENTENCE
by
ADAM McCORMICK
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Mackintosh; John Pryde & Co
Respondent: Carmichael AD; Crown Agent
12 April 2016
[1] The appellant was convicted at the age of 17 of two serious sexual offences committed against two boys between the ages of 7 and 11 when he himself was between the ages of 14 and 15. The offences included oral and anal rape, as well as other sexual assaults. The offences were repeated and committed over a lengthy period of time in each case. The sentencing judge imposed a sentence of six years detention. The sentencing judge considered that an adult offender could well face a sentence of nine years for these offences, which was consistent with a term of 8-13 years discussed in the Sentencing Guidelines for England and Wales. To reflect the age and immaturity of the appellant a substantial reduction from that was required. It was not considered that an extended sentence was required. The appellant was described as constituting a moderate risk of reoffending, having a supportive family, would be released under licence in due course and would be subject to the notification requirements of the Sexual Offences Act 2003.
[2] Counsel for the appellant submitted that the trial judge had erred in commencing with the sentence which might be appropriate for an adult offender. When sentencing a child it was necessary, whilst taking into account the requirements for retribution, deterrence and the need to protect the public, also to take into account as a primary consideration the welfare of the child and the desirability of his reintegration into society. The trial judge should not have started by looking at the appropriate sentence for adult males, but at what was an appropriate sentence for someone of the appellant’s age. In any event, the trial judge had not taken account of the welfare of the child offender or of the desirability of reintegration into society. In the result a custodial term of six years was excessive. Reference was made to Greig v HMA 2013 JC 115 where a 52 year old man was sentenced for offences of rape and lewd practices against each of two young girls (aged 6-9) committed by him when he himself was 14-15. The sentences were reduced on appeal from eight years to five years. That was a case in which considerations of reintegration into society did not apply, but they were of paramount importance in the present case, and a shorter period of detention should have been imposed to allow for this. Counsel also submitted that the whole circumstances and the terms of the criminal justice social work report are such that the trial judge also erred in not imposing an extended sentence. Although there were protective factors present in this case, the terms of the report indicated that the terms of section 210A were met. Whilst the court could only impose such an order if satisfied that the terms of the section were met, there was the additional benefit in a young offender that it might assist his reintegration into society.
[3] The trial judge selected the sentence which she did by considering the length of sentence which might be appropriate for an adult in the circumstances of this case, and having selected a figure of nine years as being a likely sentence, decided that a reduction from that to six years would reflect the relative immaturity of the child. We accept that it is not illegitimate in sentencing a child to consider the sentence which an adult offender might attract; and ultimately the correct sentence may even be identified in such a manner, but in doing so the court should take careful regard of the observations in Hibbard para 15:
“In a sense therefore, it is correct to say that the sentencing process should not simply involve an exercise of looking at past cases involving adult offenders committing similar crimes and then deducting a percentage, which is deemed appropriate to differentiate adult from child, from the level of the adult sentence. Nevertheless, if precedents for similar crimes involving adults on the one hand and children on the other are analysed, there is bound to be a recognisable arithmetical difference in the two levels. Those for a child will be proportionately lower, even if the exercise has not involved a direct comparison. It is not illegitimate, therefore, for a court to look at the sentences for adult offenders, since by doing so it will gain some knowledge of the recognised levels. With that information, it will realise that any sentence imposed on a child, with his welfare as a primary consideration, ought normally to be significantly below those levels. The court does not consider that the trial judge did other than perform that type of exercise before selecting the punishment part.”
[4] In selecting the sentence for a child, the court must have regard to the best interests of that child as a primary consideration. Moreover, a factor in that will be the desirability of the child’s reintegration into society (Article 40). These points were again made in Greig v HMA:
“[9] The problem which arises in this appeal is the identification of the correct principles to be employed in sentencing an adult offender for crimes committed when a child. The court accepts that, were the appellant to have been sentenced when he was still a child, any sentence for these crimes would have been significantly less than if the crimes had been committed by an adult. In sentencing a person who is a child, regard must be had to the best interests of that child as a primary consideration (see Hibbard v HM Advocate , under reference to the United Nations Convention on the Rights of the Child, Art...
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