Wood v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Bracadale,Lord Malcolm |
| Judgment Date | 17 January 2017 |
| Neutral Citation | [2017] HCJAC 2 |
| Docket Number | No 18 |
| Court | High Court of Justiciary |
| Date | 17 January 2017 |
[2017] HCJAC 2
Lord Justice-General (Carloway),
Lord Bracadale and
Lord Malcolm
Advocate (HM) v Graham [2010] HCJAC 50; 2011 JC 1; 2010 SLT 715; 2010 SCCR 641; 2010 SCL 789
Archer v HM Advocate [2013] HCJAC 162; 2014 SLT 133; 2014 SCCR 206; 2014 SCL 150
Barron v HM Advocate [2007] HCJAC 39; 2007 SCCR 335; 2007 GWD 26–455
R v Brynes [2016] EWCA Crim 1442
R v Colgate [2016] EWCA 1598
R v Crowther [2014] EWCA Crim 2238
R v Dixon CA (Crim), 29 July 2015, unreported
R v Handley [2016] EWCA Crim 1634
R v Horn [2014] EWCA Crim 653
R v Jones [2014] EWCA Crim 1859; [2015] 1 Cr App R (S) 9
R v McDonald [2015] EWCA Crim 2119; [2016] 1 Cr App R (S) 48
R v Young [2015] EWCA Crim 2512
Robertson v HM Advocate 2004 JC 155; 2004 SLT 888; 2004 SCCR 180
Ryder v HM Advocate [2013] HCJAC 63; 2013 SCL 723; 2013 GWD 19–390
Scottish Power Generation Ltd v HM Advocate [2016] HCJAC 99; 2017 JC 85; 2016 SLT 1296; 2016 SCCR 569; 2017 SCL 88
Taylor v HM Advocate 2002 GWD 20–675
Morrison, N, Sentencing Practice (W Green, Edinburgh, 2000), para N17.00071
Sentencing Council for England and Wales, Sexual Offences: Definitive Guideline (Sentencing Council, London, December 2013) (Online: https://www.sentencingcouncil.org.uk/publications/item/sexual-offences-definitive-guideline/ (16 February 2017))
Sentencing Guidelines Council, Sexual Offences Act 2003: Definitive Guideline (J281004) (Sentencing Guidelines Secretariat, London, April 2007), pp 109, 113 (Online: http://webarchive.nationalarchives.gov.uk/+/http:/www.sentencingcouncil.org.uk/docs/web_SexualOffencesAct_2003.pdf (16 February 2017))
Justiciary — Sentencing — Making and possession of indecent images — Custodial and extended sentence — Whether imposition of custodial sentence excessive — Whether imposition of extended sentence for legitimate purpose — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 210
Kenneth Wood pled guilty at the sheriff court in Glasgow, on 14 April 2016, to charges relating to involvement in the making and possession of indecent images of children. Thomas Tennant and Darryl McLean likewise pled guilty in separate proceedings at the sheriff court in Glasgow, on 14 July 2016. Each appellant received a custodial sentence and an extended sentence. The appellants appealed against sentence to their Lordships in the High Court of Justiciary.
Section 210 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 appellants all pled guilty in separate proceedings at the sheriff court in Glasgow to offences involving the making and possession of indecent images of children including images falling within category A of the sentencing guidelines. Each received a custodial sentence and an extended sentence. They appealed against sentence, inter alia, on the basis that the new (2013) Definitive Guideline on sentencing issued by the Sentencing Council for England and Wales differed from that of the original (2007) Definitive Guideline issued by the Sentencing Guidelines Council and which had been considered when guidelines were issued by the court in HM Advocate v Graham, in 2011. In particular, the 2013 Definitive Guideline allowed for the imposition of a community order with a sex offender treatment programme requirement, as an alternative to a short or moderate length custodial sentence, where there was sufficient prospect of rehabilitation.
Held that: (1) the imposition of extended sentences for the purpose of enabling attendance at a project designed to reduce the risk of reoffending was not legitimate, even in cases where a custodial sentence was the correct disposal (para 27); (2) a custodial disposal was appropriate in cases such as the present in which the appellants had each been in possession of a significant amount of category A images (para 30); and appeal refused in relation to the custodial sentences and allowed in relation to the extended element of the sentences.
Observed that availability of a sentence which combined a custodial and an extended supervision element for cases such as the present merited consideration by the Scottish Government and/or the Scottish Sentencing Council (para 35).
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Bracadale and Lord Malcolm, for a hearing, on 30 November 2016.
At advising, on 17 January 2017, the opinion of the Court was delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[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, 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.
[2] On 14 April 2016, at Glasgow Sheriff Court, the first appellant pled guilty, under the procedure authorised by sec 76 of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’), 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 sec 52(1)(a) of the Civic Government (Scotland) Act 1982 (cap 45) (‘the 1982 Act’). The second was of possessing indecent images of children at his home on 4 September 2015. On 7 July 2016, the sheriff (PV Crozier) imposed an extended sentence of three years and four 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 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 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, eight into category B and ten into category C. On a number of compact 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 her carer. The appellant offered no explanation for his possession of the images, other than his own sexual gratification. The criminal justice social work report (‘CJSWR’) noted that he had little or no...
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