Doherty v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-Clerk (Dorrian),Lord Glennie,Lord Woolman |
| Judgment Date | 20 November 2018 |
| Neutral Citation | [2018] HCJAC 72 |
| Docket Number | No 5 |
| Court | High Court of Justiciary |
| Date | 20 November 2018 |
[2018] HCJAC 72
Lord Justice-Clerk (Dorrian), Lord Glennie and Lord Woolman
Advocate (HM) v Graham [2010] HCJAC 50; 2011 JC 1; 2010 SLT 715; 2010 SCCR 641; 2010 SCL 789
S v HM Advocate [2017] HCJAC 12; 2017 SCCR 129; 2017 SCL 363; 2017 GWD 8–112
Wood v HM Advocate [2017] HCJAC 2; 2017 JC 185; 2017 SLT 190; 2017 SCCR 100; 2017 SCL 295
Sentencing Council for England and Wales, Sexual Offences: Definitive Guideline (Sentencing Council for England and Wales, London, December 2013) (Online: https://www.sentencingcouncil.org.uk/wp-content/uploads/Sexual-offences-definitive-guideline-Web.pdf (29 November 2018))
Justiciary — Sentencing — Possessing and distributing indecent images of children — Custodial and extended sentences imposed — Whether imposition of extended sentence justified
John Doherty pled guilty at the sheriff court in Glasgow, on 11 January 2017, to charges related to the possession and distribution of indecent images of children. The appellant received a custodial sentence and an extended sentence. The appellant did not seek leave to appeal against sentence. The Scottish Criminal Cases Review Commission referred the case to the High Court of Justiciary in terms of sec 194B of the Criminal Procedure (Scotland) Act 1995.
Section 210A of the Criminal Procedure (Scotland) Act 1995 (cap 46) provides that an extended sentence is only to be imposed where the court is satisfied that the period for which the offender would otherwise be subject to licence would not be adequate for the purpose of protecting the public from serious harm.
The appellant pled guilty at the sheriff court in Glasgow to offences involving the possession and distribution of indecent images of children. The appellant received a custodial sentence in respect of the charges of possession and distribution and an extended sentence in respect of the distribution charge. The Scottish Criminal Cases Review Commission referred the case to the High Court of Justiciary.
The appellant argued that there was no evidence of a risk of serious harm to the public where the appellant was not responsible for the creation of the indecent images.
Held that: (1) the appellant's participation in extreme discussions about and his distribution of the images were relevant to the risk of him engaging in child abuse and encouraging others to demand images and engage in child abuse (para 12); (2) there was adequate material entitling the sheriff to find that there was the requisite risk to the public connected to his offending (paras 13, 14); and appeal refused.
Wood v HM Advocate 2017 JC 185 and S v HM Advocate2017 SCCR 129considered.
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Dorrian), Lord Glennie and Lord Woolman, for a hearing, on 25 October 2018.
At advising, on 20 November 2018, the opinion of the Court was delivered by the Lord Justice-Clerk (Dorrian)—
Opinion of the Court— [1] On 11 January 2017, the appellant pled guilty at Glasgow Sheriff Court to charges of possessing and distributing indecent images of children, contrary to secs 52A and 52(1)(b) of the Civic Government (Scotland) Act 1982 (cap 45). The possession charge related to (i) 152 moving images, of which 74 were at category A and 65 at category B, and (ii) 61 still images, of which 47 were at category A and the remainder at category B. One category A clip lasted 19 minutes. It showed a six-month-old child screaming and crying, while being penetrated anally and orally by an adult male penis. The distribution charge related to 86 still images, of which 61 were at category A and 22 at category B. The appellant had shared these images with 14 individuals and two groups, one of which contained 50 members.
[2] The sheriff sentenced the appellant to 12 months' imprisonment on the possession charge. He imposed an extended sentence of 37...
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Appeal Against Sentence By Keiran Webster
...Second, he frequented chat groups where there was discussion and sharin g of indecent images of children (cf. Doherty v HM Advocate 2019 JC 40, paragraphs [12]-[14]). Third, his statements about wanting to kill someone and watch them suffer are evidence of a highly unusual and sadistic set ......