David Mcmillan V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Bonomy,Lord Carloway |
| Judgment Date | 12 October 2010 |
| Neutral Citation | [2010] HCJAC 103 |
| Docket Number | XC703/09 |
| Date | 12 October 2010 |
| Court | High Court of Justiciary |
| Published date | 12 October 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lord Carloway Lord Bonomy | [2010] HCJAC 103 Appeal No: XC703/09 OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD OSBORNE in APPEAL AGAINST CONVICTION AND SENTENCE by DAVID BAILLIE McMILLAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Jackson, Q.C. et J. MacDonald; Culley & McAlpine, Perth
Respondent: Miss Shand, Q.C. A. D.; Crown Agent
12 October 2010
The background circumstances
[1] On 20 November 2008 the appellant appeared in Perth Sheriff Court to answer an indictment containing two charges. The appellant was then represented by counsel. He pled not guilty to charge (1) and guilty to charge (2). These pleas were accepted by the procurator fiscal depute. The terms of charge (2) were as follows:-
"(2) Being subject to an interim sexual offences prevention order granted at Perth Sheriff Court on 27 May 2008 in terms of the Sexual Offences Act 2003 prohibiting you inter alia from having unsupervised contact with any female child or accosting or molesting any female child, you did between 28 July 2008 and 2 August 2008, both dates inclusive, at 17 Glenearn Road, Perth, 24 St Catherine's Square, Perth or elsewhere in Perth and Kinross, to the prosecutor unknown, without reasonable excuse breach the terms of said order in that you did repeatedly over the course of several days send text messages and make telephone calls to MLM, requesting her to meet you, repeatedly invite her to your home and indicate to her that you had drugs and alcohol at your home; contrary to the Sexual Offences Act 2003, section 113(1)(b)."
[2] The procurator fiscal depute then moved the court for sentence. He placed before the court a notice of previous convictions applying to the appellant. These convictions were 12 in number. Significantly they included a conviction recorded on 3 June 1996 in the High Court in Glasgow of rape, and assault to severe injury, permanent impairment and the danger of life, which attracted a sentence of 9 years detention in a young offenders institution; a conviction recorded on 18 April 2006 in Perth Sheriff Court in respect of a charge of breach of the peace, prosecuted on indictment, which attracted the imposition of a probation order of 3 years duration and a restriction of liberty order of 12 months duration, requiring the appellant to remain within his home on a daily basis between the hours of 7pm and 7am; and a conviction recorded on 1 December 2006, again in Perth Sheriff Court, in respect of a charge of breach of the peace, prosecuted on indictment, which attracted a sentence of imprisonment of 18 months, subject to a supervised release order with a requirement that the appellant did not have unsupervised contact with any female child under the age of 16.
[3] The procurator fiscal depute then proceeded to give a history of the case and a narrative of the circumstances which had led to the bringing of charge (2) in the indictment. They were as follows. The appellant had been liberated from custody imposed in respect of his immediately antecedent conviction on 18 July 2008. The complainer in charge (2) in the indictment was MLM, a 14 year old vulnerable female, who was then residing in care at a place of safety. She did not know the appellant and had never met him. She owned a mobile telephone and had formed a friendship with a Mr Cuthbert. Her mobile telephone number was stored on Mr Cuthbert's mobile telephone. Mr Cuthbert's mobile telephone got into the possession of a Mr Handley. Subsequently it got into the hands of the appellant. Over the period from 28 July to 2 August 2008, the appellant contacted MLM, first by sending blank text messages and then by a voice call during which he asked her to meet him at a place in Perth. There followed repeated voice calls and text messages to her mobile telephone from the appellant. He called himself "Baillie". On each occasion he asked MLM to meet him, either at the library, or at his home address. He gave her his address and on at least two occasions told her that he had alcohol and drugs available there. He gave MLM a physical description of himself and told her that she "sounded really nice". MLM became worried about the appellant's persistence in contacting her and at no time did she agree to meet him nor did she in fact meet him.
[4] The mobile telephone had been recovered by Mr Handley. There was subsequently contact between MLM, Mr Cuthbert and Mr Handley, which included various conversations about the appellant making calls. On one occasion MLM met Mr Handley in a public place and during their meeting she received a further text message from the appellant asking her to meet him that evening. There were further attempts by the appellant to make contact with the complainer. She became increasingly alarmed, particularly in the light of what Mr Handley had to told her about the appellant's background and past.
[5] The matter came to the attention of the authorities as a result of a missing person enquiry relating to the complainer. She was reported missing on the evening of 6 August 2008 by the social work department. Police enquiries were made to trace her whereabouts. In the early hours of 7 August 2008, Mr Handley was arrested by police on an unrelated matter. He disclosed details of the contact that the appellant had had with her. That led to Mr Cuthbert being traced and interviewed. MLM herself was thereafter traced and at that time she was asked by the police to make a full statement, which she did, making a formal complaint in respect of the appellant's behaviour. When traced by police at his home address, the appellant was advised that the police officers were making an enquiry into a vulnerable missing person and was advised as to the information that police officers then had. He claimed that he had never been in contact with MLM and did not know her.
[6] Following further police enquiries, the appellant was detained in respect of the matters which became the subject of charge (2) in the indictment. Whilst on route to the police office, the appellant made reference to the incident. Being reminded that he had been cautioned, he then said: "I'd like you to ask the officer speaking to the girl to ask her the specific question, if she ever told me her age". This was the first occasion on which the appellant had admitted to police officers that he had in fact been in contact with MLM. He was asked about that and he admitted having sent text messages to her and spoken to her, but said that they had never met. He said "I thought she was 19 or something". He made a reference to Mr Handley saying: "I did not know that Danny [Mr Handley] was running about with 14 year olds". When interviewed, the appellant admitted contact with MLM. He did not accept that he had initiated the contact, but when presented with the evidence of the blank text messages, suggested that they had perhaps been sent in error. The appellant maintained his position that any contact by him with MLM had been on the understanding that she was 19 years of age, or about 19. The procurator fiscal depute advised the sheriff that Mr Handley was, at the material time, 20 years of age.
[7] Thereafter the sheriff was addressed by counsel for the appellant. He emphasised that MLM had not told the appellant her age and that the appellant believed her to be 19 years old, or thereabouts, rather than 14. Counsel for the appellant went on to say the following:
"Now it's a very anxious consideration by me given to whether or not that state of mind constituted a reasonable excuse in terms of the section, but after that consideration I reached the view that it does not constitute a reasonable excuse in terms of the section but, nevertheless, it is something which is or can, very properly and very fairly be put in my submission of mitigation, because it distinguishes between what, on one view, is inappropriate and clearly somewhat objectionable conduct on the part of the panel from the situation where the panel knowingly, and consciously, pursued a minor female, and it will be my position in mitigation that it was the former rather than the latter".
[8] The sheriff adjourned the diet of 20 November 2008 until 18 December 2008, in order to obtain a social enquiry report, a community service assessment, a restriction of liberty order assessment and a report by a psychologist. The appellant was remanded in custody. Having received the reports, which included a psychological assessment report by Dr Ewan Lundie and Claire Robinson, dated 17 December 2008, the sheriff remitted the case for sentence to the High Court of Justiciary. It was by virtue of that remit that the appellant appeared before the sentencing judge sitting at Edinburgh on 9 January 2009. At that time, a report from the sheriff to the High Court was available, in which he explained his reasons for making the remit. There he said inter alia:
"The reports were available on 18 December 2008 and it was the information contained in the reports, taken along with the record of the accused and the circumstances of the offence, that made me decide to remit. I did not do so because I thought the accused should receive more than 5 years imprisonment for the offence, since the maximum sentences is 5 years, but I was concerned about the risk posed by the accused in this case. I took the view that section 210E of the Criminal Procedure (Scotland) Act 1995, ["the 1995 Act"], might come into play in this case. That section contemplates a remit to your Lordships court under section 195 if the conditions set out in [section] 210E apply. The section sets out what the 'risk criteria' are, namely that 'the nature or circumstances of the commission of the offence...either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or...
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