HM Advocate v JT
| Jurisdiction | Scotland |
| Judgment Date | 24 September 2004 |
| Docket Number | No 11 |
| Date | 24 September 2004 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Justice-General (Cullen of Whitekirk), Lord Hamilton, Lady Cosgrove
Justiciary - Sentence - Sex offender - Offences of possession of indecent photographs or pseudo photographs of children, and lewd, indecent and libidinous practices and behavoiur against pre-pubertal females and rape of pre-pubertal female - Whether a sentence of five years' imprisonment with no extended sentence appropriate in circumstances - Criminal Procedure (Scotland) Act 1995 (cap 46), sec 210A
Section 210A(1) of the Criminal Procedure (Scotland) Act 1995 provides,inter alia, that in a case in which the court considers that the period for which an offender would, apart from the provisions of the section, be subject to a licence is inadequate for the purpose of protecting the public from serious harm from the offender, an extended sentence comprising part imprisonment part extension period falls to be imposed.
The pannel plead guilty to four charges relating to sexual offences relating, inter alia, to pre-pubertal females, including one charge of rape. The offences had come to light as a result of police investigations, whereafter the pannel had co-operated with the police and assisted them in their enquiries, as well as admitting his offending behaviour which had commenced some four years previously. The complainers were a daughter of the friend of the pannel aged 6 to 10 years during the period of the relative charge and the pannel's niece aged 13 months to 5 years during the period of the relative charge. No information was provided to the sentencing judge as to the frequency of the offending behaviour towards the complainers in the relative charges nor the age of the complainer at the time of the rape.
The pannel was a first offender and the sentencing judge had before him a pre-trial social inquiry report, letters from the pannel and his wife, and a report from a clinical psychologist. The pannel was sentenced to five years' imprisonment and Her Majesty's Advocate appealed against sentence on the basis that it was unduly lenient. In considering the matter, the Appeal Court had before it a number additional reports, including a full social inquiry report, and further psychological and psychiatric reports.
Held that in light of the circumstances of the case and the additional reports before the court, the sentence was unduly lenient and an extended sentence of 13 years, comprised of a custodial period of eight years and an extension period of five years was appropriate (paras 42, 43).
On 3 September 2003, the sentencing judge, Lord Reed, imposed a sentence of five years' imprisonment.
Her Majesty's Advocate appealed to the High Court of Justiciary by note of appeal against sentence.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Cullen of Whitekirk), Lord Hamilton, and Lady Cosgrove for a hearing, on 3 and 24 September 2004.
Observed that: (1) in cases where the possibility of an extended sentence is a live consideration, it is usually appropriate for the sentencing judge to have sight of a full post-conviction social enquiry report and a risk assessment by a suitably qualified psychologist (para 44); (2) the frequency with which a particular sexual offence has been committed will usually be an important consideration in the selection of an appropriate sentence, both in respect of punishment and risk (para 45); and (3) the press and media have responsibilities as well as powers and duties and that it was a grave disservice to the public interest where these were not recognised and discharged, inter alia, due to inaccurate or misleading reporting of the circumstances of a case (paras 47, 48).
HM Advocate v Bell 1995 SLT 350 applied.
Robertson v HM Advocate 2004 SLT 888 distinguished.
R v Secretary of State for the Home Department, ex p Venables and ThompsonELR [1998] AC 407 approved.
JT was charged at the instance of the Colin Boyd QC, Her Majesty's Advocate, on an indictment and plead guilty on 6 August 2003 to four charges which are set forth in the opinion of the court.
Cases referred to:
Advocate (HM) v BellUNK 1995 SLT 350; 1995 SCCR 244
Advocate (HM) v BennettSCUNK 1997 JC 49; 1996 SLT 662; 1996 SCCR 331
Advocate (HM) v DonaldsonUNK 1998 SLT 877; 1997 SCCR 738
Advocate (HM) v O'DonnellUNK 1996 SLT 563; 1995 SCCR 745
Advocate (HM) v ShearerUNK 2003 SLT 1354; 2003 SCCR 657
Blair v HawthornSC 1945 JC 17; 1945 SLT 141
R v Secretary of State for the Home Department, ex p Venables and ThompsonELRWLRUNK [1998] AC 407; [1997] 3 WLR 23; [1997] 3 All ER 97
Robertson v HM AdvocateUNK 2004 SLT 888; 2004 SCCR 180
On 24 September 2004, the opinion of the Court was delivered by the Lord Justice-General (Cullen of Whitekirk)-
Opinion of the Court- [1] On 6 August 2003 the respondent pled guilty in the High Court at Edinburgh to the following charges:
"(2) on 5 December 2002 at [an address in Grangemouth] you did have in your possession indecent photographs or pseudo-photographs of children: CONTRARY to the Civic Government (Scotland) Act 1982, section 52A; … "
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(5) on various occasions between 28 August 1998 and 5 December 2002, both dates inclusive, at [that address], you did use lewd, indecent and libidinous practices and behaviour towards [L], born on 28 August 1992, c/o Central Scotland Police, Stirling, and did remove her nightclothes, expose her private parts, pull her legs apart, handle her private parts and take photographic images of her private parts;
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(6) on various occasions between 28 August 1998 and 5 December 2002, both dates inclusive, at [that address] you did use lewd, indecent and libidinous practices and behaviour towards [A], born 16 July 1997, your niece, c/o Central Scotland Police, Stirling, and did remove her nightclothes, expose her private parts, handle her private parts, lick her private parts, place your private member against her private parts and take photographic images of her private parts and of your private member against her private parts; and
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(7) on an occasion between 28 August 1998 and 5 December 2002, both dates inclusive, at [that address] you did assault [A], born 16 July 1997, your niece, c/o Central Scotland Police, Stirling, and did insert your private member into her private parts, and did rape her.'
The respondent's pleas of not guilty in respect of the remaining charges on the indictment were accepted.
[2] Following enquiries by the Metropolitan Police into the distribution of indecent images of children through the internet, Central Scotland Police obtained a warrant to search an address in Grangemouth where the respondent lived. During the search, which took place on 5 December 2002, police officers found a computer system containing a floppy disc, together with a large number of CD-ROMs, floppy discs and computer apparatus. On examination it was found that many of the items of software and hardware contained pornographic images. Many of them had been deleted. After the respondent had disclosed a password an examination of the computer apparatus disclosed the existence of more pornographic images. In total there were 2,880 images of an indecent nature involving children. They included children posing in a sexually explicit manner and there were moving pictures showing sexual abuse of young children, including a female child being raped by an adult male, young children involved in oral sex and children having intercourse with each other. The vast majority of the images had been downloaded from the internet. There was some duplication, in that some of the images appeared in more than one place. Police experts indicated that about 4-5 per cent of the images appeared to be duplicated. Using specialist techniques and equipment it was possible to recover deleted images. Among the recovered images were images of sleeping girls in bed with their nightclothes removed, exposing their private parts. It was through examination of these images that the events to which charges 5, 6 and 7 relate came to light.
[3] L, to whom charge 5 related, was the friend of a daughter of the respondent. She would sometimes stay overnight with her friend at the respondent's house. It became apparent that, while she was sleeping, the respondent conducted himself in the way set out in that charge. During the period to which that charge related L was between 6 and 10 years of age.
[4] A, the respondent's niece, would also stay at his house from time to time. During the period to which charge 6 related she was aged between 13 months and 5 years. As in the case of charge 5, she was identified from photographs taken by the respondent. While she was sleeping in bed he conducted himself in the way set out in that charge.
[5] In regard to charge 7, the sentencing judge was informed that the Crown had been advised by Professor Busuttil and Dr Helen Hammond that one of the photographs showed that the respondent's penis had entered into the lower part of the child's vagina, its tip being inside A's labia majora to the extent of one centimetre. The medical opinion was that it was possible that this could have been performed while the child was normally asleep and without the child being wakened. The sentencing judge understood that this degree of penetration would have been very unlikely to cause any pain or injury.
[6] It may be noted that no information was placed before the sentencing judge as to the frequency of the offending behaviour to which charges 5 and 6 related, or as to the age of the complainer whom the offence in charge 7 was committed; nor did the sentencing judge make further enquiry on these matters.
[7] The respondent admitted his offending behaviour in the course of being interviewed by the police. He informed them that he wished he could be taken back a few years so that he could...
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