Appeal Against Sentence By Rc Against Her Majesty's Advocate

JurisdictionScotland
JudgeLord Turnbull,Lord Brodie,Lord Justice Clerk
Neutral Citation[2019] HCJAC 62
CourtHigh Court of Justiciary
Date02 October 2019
Docket NumberHCA/2019/220/XC
Published date02 October 2019
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2019] HCJAC 62
HCA/2019/220/XC
Lord Justice Clerk
Lord Brodie
Lord Turnbull
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST SENTENCE
by
RC
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Paterson, Sol Adv; Paterson Bell for Hodge, Solicitors, Perthshire
Respondent: Lord Advocate, QC, AD; L Irvine; Crown Agent
2 October 2019
Introduction
[1] On 12 February 2019 at Perth Sheriff Court, the appellant pled guilty by way of an
indictment in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 to a
contravention of sections 31 and 34 of the Sexual Offences (Scotland) Act 2009 (charge 1) and
a contravention of sections 21 and 24 of the 2009 Act (charge 2). On 1 May 2019, he was
sentenced in cumulo to 20 months imprisonment. He appeals against that sentence on the
2
ground that it was excessive and, in the light of his particular circumstances, in
contravention of his rights under article 3 of the European Convention on Human Rights
(“ECHR”).
Background
[2] The appellant was born with spina bifida and has never had any sensation or
movement below the waist. He is doubly incontinent and is reliant on the care of his mother
and aunt to manage his needs on a daily basis which needs include assistance with toileting,
dressing, eating, washing and mobility. He wears incontinence pads which require to be
changed on a regular basis. He had been able to maintain part time employment at a call
centre by limiting his intake of fluids and using especially absorbent pads, but if problems
arose he required to call his mother to take him home. This occurred on a regular basis. He
uses a wheelchair. He also has diabetes and ulcers on his legs for which he requires constant
treatment. Broadly speaking, it is submitted for the appellant that in light of his needs and
the inability of the prison estate to provide therefor (at least in the immediate term) taken
together with the fact that the appellant had no previous convictions, the sentence imposed
by the Sheriff was inappropriate and excessive.
The Offences
[3] Charge 1 occurred on 16 August 2015 and involved the appellant communicating in
a sexual manner with a 15 year old girl, and intentionally causing her to participate in a
sexual activity via Skype in that he encouraged her to remove her clothing on camera whilst
he watched her. The specific incident had been preceded by a period of “grooming” in
which the appellant (who was aged 39) had developed an on-line relationship with the girl,
holding himself out as being 18 years of age. He persuaded the girl to pull down the zipper

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