Andrew Walker Penman V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Marnoch,Lord Bonomy,Lord Justice Clerk |
| Court | High Court of Justiciary |
| Date | 07 July 1999 |
| Docket Number | C78/99 |
| Published date | 02 August 2000 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
| Lord Justice Clerk Lord Marnoch Lord Bonomy
| Appeal No: C78/99 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by ANDREW WALKER PENMAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Stirling Eunson & Ferguson
Respondent: Brodie, Q.C., A.D.; Crown Agent
7 July 1999
On 13 January 1999 the appellant pled guilty to three amended charges of shameless indecency. These charges concerned his conduct towards three sisters. Charge 1 on the indictment related to various occasions between 2 October 1966 and 15 April 1976 when the girl was 4-13 years of age. Charge 3 related to his conduct on various occasions between 28 November 1972 and 15 April 1976 when the second girl was aged 9-13 years of age. Charge 5 related to his conduct on various occasions between 16 May 1971 and 15 April 1976 when the third girl was aged 3-6 years of age. On 9 February 1999 the appellant was sentenced to six years imprisonment as from that date.
The report by the sentencing judge states that the children had suffered from unfortunate circumstances. Their father had died in November 1972. Their mother, who was an alcoholic, did not look after them well. In the result the children were neglected. On many occasions they were physically abused by their mother. The appellant was a neighbour of the children for a considerable number of years. The offences were committed by him when he was babysitting for them, and accordingly was in a position of trust. As regards charge 1, conduct began with the fondling of the girls' private parts and went on to inducing her to handle the appellant's private member and masturbate him to the emission of semen. This conduct occurred on many occasions. Charge 3 was similar in nature. Charge 5 was limited to the appellant's handling of the girls' private parts and inserting his finger into them.
No notice of previous convictions was placed before the court by the Crown. However, a social enquiry report on the appellant referred to the fact that the appellant had been convicted in the High Court on 19 February 1996 on four charges of lewd, indecent and libidinous practices and behaviour and one charge of assault, in respect of which a cumulo sentence of three years imprisonment was imposed on him. Each of the four charges of indecency related to a single occasion, the earliest being between 16 February 1982 and 28 October 1983 and the latest being between 10 August and 15 November 1987. The assault charge related to a single incident which occurred between 1 January 1993 and 25 August 1995. It appears that the appellant was released from imprisonment on 28 August 1997. In November of that year he was interviewed by the police in connection with the present offences which were not known to the Crown at the time of the proceedings which led to his conviction on 19 February 1996.
The sentencing judge took the view that it was proper for him to take into account that conviction in forming a view as to the extent to which he should have in mind the protection of the public. It appeared to him that it was of considerable significance in that connection. In his report he states that, had the conviction of 19 February 1996 not been before him, he would have been able to conclude that, in all probability, having regard to the age of the offences with which he was...
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