Notes Of Appeal Against Sentence By (first) Kenneth Wood; (second) Thomas Tennant And (third) Darryl Mclean
| Jurisdiction | Scotland |
| Judge | Lord Malcolm,Lord Justice General,Lord Bracadale |
| Court | High Court of Justiciary |
| Date | 17 January 2017 |
| Published date | 17 January 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 2
HCA/2016/382/XC, HCA/2016/499/XC and HCA/2016/473/XC
Lord Justice General
Lord Bracadale
Lord Malcolm
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTES OF APPEAL AGAINST SENTENCE
by
(FIRST) KENNETH WOOD; (SECOND) THOMAS TENNANT; and
(THIRD) DARRYL McLEAN
Appellants
against
HER MAJESTY’S ADVOCATE
Respondent
First Appellant: Mackintosh, Lunny; John Pryde & Co (for Russells Gibson McCaffrey, Glasgow)
Second Appellant: MacKintosh; John Pryde & Co
Third Appellant: CM Mitchell, Findlater; Beltrami & Co, Glasgow
Respondent: Erroch AD; the Crown Agent
17 January 2017
Introduction
[1] These three appeals relate to charges involving the making and possession of indecent images of children. They have been heard together in order to consider whether the guidelines, which were issued in HM Advocate v Graham 2011 JC 1, require to be amended or updated in light of the Definitive Guideline on Sexual Offences, issued by the Sentencing Council for England and Wales in December 2013.
Facts
First appellant
[2] On 14 April 2016, at Glasgow Sheriff Court, the first appellant pled guilty, under the procedure authorised by section 76 of the Criminal Procedure (Scotland) Act 1995, to two charges. The first was of making indecent images of children at his home in Glasgow, between February 2013 and September 2015, contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982. The second was of possessing indecent images of children at his home on 4 September 2015. On 7 July 2016, the sheriff (Crozier) imposed an extended sentence of 3 years and 4 months, with a custodial element of 16 months, discounted for the early plea from 24 months.
[3] The circumstances of the offences are straightforward. The police called at the appellant’s home on 4 September 2015, with a warrant to search for indecent images of children. Such images are classified in terms of the English Guideline (infra) into three categories. Category A involves penetrative sexual activity, sexual activity with an animal or sadism. Category B involves non-penetrative sexual activity. Category C involves other indecent images, not falling into the other two categories. On the appellant’s computer there were 158 still images, 38 falling into each of categories A and B and 82 into Category C. There were 31 moving images, 13 of which fell into Category A, 8 into Category B and 10 into Category C. On a number of discs there were 1,685 still images; 421 at Category A, 361 at Category B and 903 at Category C. There were also 205 moving images; 132 at Category A, 43 at Category B and 30 at Category C. All of these images depicted children of both sexes, although mainly girls, ranging from 3 to 14 years of age. The images had been downloaded from websites, including file-sharing applications.
[4] The appellant was aged 65 and had retired from work in supermarket bakeries. He had no previous convictions. He lived with his partner, who had multiple health problems, including severe asthma. He acted as a carer for her. The appellant offered no explanation for his possession of the images, other than his own sexual gratification. The Criminal Justice Social Work Report noted that he had little or no victim empathy in that he seemed to consider that: the children depicted were enjoying the activity because they were smiling; they were actors rather than real; and the images were from 20 years ago and the activity was thus “not happening now”. He was assessed as at low risk of general offending in terms of the LS/CCM1 risk assessment tool and at low risk of further sexual offending, using the Risk Matrix 2000. The CJSWR specifically stated that “Public protection issues appear to be minimal. The appellant was deemed suitable for a community based disposal. It reported that in the event of a custodial sentence he would be assessed for suitability for the Moving Forward Making Changes Programme (MFMC), which was run within the Scottish Prison Service and in the community. If he did not complete such a programme in custody, he could be referred to the Clyde Quay Project (part of CJSW) as part of extended sentence licence conditions. A Community Payback Order could also provide that he attend the Project.
[5] The sheriff had regard to HM Advocate v Graham (supra), LJC (Gill) at para [28]; Archer v HM Advocate 2014 SCCR 206 and Ryder v HM Advocate [2013] HCJAC 63. He took note of the terms of the 2013 Definitive Guideline (infra). He concluded that a non-custodial disposal would not reflect the gravity of the offences. It would not meet the requirements of punishment, denunciation and general deterrence. He noted the large number of prosecutions for this type of offence in the sheriffdom and the continuing “quite dreadful and appalling exploitation of children”. Although the CJSWR had assessed the appellant as being at low risk of sexual offending, the sheriff took the view that “standing the nature of the offending and the terms of the CJSWR” an extended sentence was necessary to protect the public from serious harm. The reporting requirements under the Sexual Offences Act 2003 were noted. However, the sheriff was of the view that the period of licence involved in a conventional sentence coupled with any work carried out in custody would be insufficient in which to carry out the work, notably that of the Clyde Quay Project, necessary to protect the public from serious harm. Significant input was needed to protect the public from serious harm.
[6] The appellant had set out on a pre-planned course of conduct for his own sexual gratification. He had showed no concern for the children in the images. He had attempted to minimise, justify and excuse his offending behaviour. Any remorse related to the consequences to him, rather than compassion for his victims. In all the circumstances, the sheriff reached the conclusion that, notwithstanding the appellant’s previous good character, an extended sentence was appropriate and necessary.
Second appellant
[7] On 14 July 2016, at the Sheriff Court at Glasgow, the second appellant pled guilty, under the section 76 procedure, to one charge of making indecent images over a period of almost 6 years, contrary to section 52(1)(a) of the 1982 Act. On 18 August 2016, the sheriff (Cathcart) imposed an extended sentence of 3 years and 8 months, with the custodial element being 8 months, reduced from 11 for the early plea.
[8] On 3 December 2015, the police had conducted a search of the appellant’s home for indecent images under a warrant. On two hard drives and a computer base unit, there were 101 images, 46 in Category A of which 26 were moving, 13 in Category B and 42 in Category C. These featured girls between the ages of 8 and 16. They had been downloaded from the internet, including file-sharing applications.
[9] The appellant was aged 65. He had retired from a career in accounts management. He was married, but had separated from his wife after his arrest. He had been given a brochure concerning, and had since then attended, a 10 week “Stop it Now” course, that being the National Programme for the Prevention of Child Abuse. The CJSWR recorded that he was assessed as at medium risk of further offending in terms of the LS/CCM1 programme. He was at low risk of sexual recidivism under Risk Matrix 2000. The report explained that the appellant had attempted to justify and excuse his offending under reference to being de-sensitised to “mainstream pornography”. He had a tendency to blame his difficulties on his personal life, including his having to care for a father with dementia. Any empathy that he had for the children in the images, was superficial. Prior to the appellant’s release from prison, a robust risk management plan would be required “to uphold public protection” when managing the appellant in the community.
[10] The sheriff had regard to HM Advocate v Graham (supra) and considered that a custodial sentence was the only appropriate one having regard to the category of image and the time over which the offence was committed. He noted the need for a robust management plan and concluded that steps required to be taken to protect the public upon his release from custody, namely an extended sentence. The extended period was fixed, having regard to the time required to complete the appropriate work with the Clyde Quay Project.
Third appellant
[11] On 14 July 2016, at Glasgow Sheriff Court, the appellant pled guilty at a first diet to making indecent photographs of children, during the period 8 October 2013 to 2 September 2015, contrary to section 52(1)(a) of the 1982 Act. On 18 August 2016, the sheriff (Cathcart) imposed an extended sentence of 3 years and 9 months, with the custodial element being set at 9 months and discounted from 12 months for the early plea.
[12] On 2 September 2015, the police had attended the appellant’s home, in possession of a warrant to search for indecent images. They located two laptops. A total of 540 moving images were recovered, of which 342 were accessible. 332 of these were in Category A, 137 in Category B and 71 in Category C. There were also 188 still images of which 8 were accessible, 6 at Category A, 10 at Category B and 172 at Category C. These had been downloaded from websites. Considerable planning would have been required by way of searching for particular types of images. The images were of boys aged between 3 and 11 and girls from a few months old to 7 years.
[13] The appellant was aged 30 and in full time employment as a haulage scheduler. He lived with a girlfriend, who had a 10 year old daughter. He had convictions for theft and road traffic offending. The CJSWR stated that the appellant lacked insight into his offending and had attempted to justify it. Risk Matrix 2000 assessed him as at low risk of general offending but at medium risk of sexual offending. Work required to be done to...
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