High Court of Justiciary
| Author | Gavin Dingwall |
| DOI | 10.1177/002201839606000303 |
| Published date | 01 August 1996 |
| Date | 01 August 1996 |
| Subject Matter | High Court of Justiciary |
HIGH
COURT
OF
JUSTICIARY
UNDULY LENIENT SENTENCES
HM
Advocate v
May
Shortly after the decision in H M Advocate vBell 1995 SLT 350, the High
Court of Justiciary had to consider another Crown Appeal against a
supposedly unduly lenient sentence. The respondent in
HM
Advocate v
May
1995 SLT 753 had been found guilty of eight charges of lewd,
libidinous and indecent behaviour. The charges related to a number of
boys, aged between eight and 11, who attended a boys' club where the
respondent ran a football team. The sheriff stated that he had found it
difficult to arrive at the correct sentence as the reports that he had studied
of previous cases could be distinguished on the facts. In the event he
sentenced May to nine months' imprisonment.
The Lord Advocate appealed on the basis that the sentence was unduly
lenient having regard to a number of salient factors. The offences
concerned the abuse of six boys over a protracted period of several years.
Furthermore, the respondent had abused aposition of trust.
It
was also
argued by the Lord Advocate that the circumstances of the assaults, and
in particular the breach of trust involved, was going to result in long-term
emotional problems for the victims. In light of these submissions it was
contended that the sheriff had failed to take account of the gravity of the
offences and that aproper sentence would have been in the range of 18
months to three years. Counsel for the respondent argued in response that
the sheriff had considered previous authorities before passing sentence and
that the sheriffs report on the case demonstrated that he had balanced all
relevant considerations. As a result it was submitted that the court would
not be justified in interfering with the sheriffs discretion to pass an
appropriate sentence.
Ross LJ stated that it was clear from the sheriffs report that he had
considered all of the material matters, however, in light of the factors
stressed by the Lord Advocate, the sentence imposed appeared to be
lenient in the circumstances. However, the mere fact that the sentence was
lenient was not sufficient to allow the
appeal-the
sentence had to be
unduly lenient. In this case there were also mitigating circumstances: the
indecent behaviour had been comparatively light and the respondent was
aged 47, a first offender and in poor health. The sheriff had expressed the
view that any period of custody was going to be a severe punishment for
the respondent. Ross LJ held that the sheriff, having considered all the
relevant factors, was entitled to form such an opinion and the court would
not interfere with the sheriffs inherent discretion to pass what he perceived
to be an appropriate sentence.
It
was similarly felt to be inappropriate for
the High Court of Justiciary to offer general sentencing guidelines for
such cases as the circumstances in each case varied considerably.
The reasoning of the court follows the approach taken in HM Advocate
234
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