Adam McCormick v. Her Majesty’s Advocate [2016] HCJAC 50

Note of appeal against sentence:- The appellant was convicted on indictment of two serious sexual assaults involving the repeated oral and anal rape of two boys aged 7 and 11 when the appellant was aged 14/15 years. The appellant was convicted when he was 17 years of age. The appellant was sentenced to 6 years detention after the sentencing judge deemed that if the appellant had been an adult offender the likely sentence would have been 9 years imprisonment but on account of the age and immaturity of the appellant the sentence was reduced to 6 years. Due to the appellant presenting as a moderate risk of reoffending and being from a supportive family the sentencing judge considered that an extended sentence was not deemed necessary and that the license conditions and the notification requirements under the Sexual Offences Act 2003 would be adequate to deal with the appellant on his release. The appellant appealed against the sentence imposed on the grounds that the period of detention selected was excessive. In particular, it was submitted that the sentencing judge had erred in using, as a starting point, what the appropriate sentence for an adult would have been as in relation to sentencing a child the primary consideration should be the welfare of the child and the desirability of the child’s reintegration into society. It was further submitted on behalf of the appellant that having regard to the terms of the Criminal Justice Social Work Report the terms of section 210A of the Criminal Procedure (Scotland) Act 1995 were met and the sentencing judge had erred in not imposing an extended sentence. Here the court allowed the appeal and agreed with the submissions made on behalf of the appellant that the sentencing judge had erred in not having the best interests of the appellant as the primary consideration under reference to Article 3.1 of the United Nations Convention on the Rights of the Child and under Article 40 and the desirability of the child's reintegration into society. The court stated that whilst the sentencing judge discounted the sentence on account of the appellant’s immaturity it did not appear that these other important factors were taken into account. In addition, the court considered that having regard to the terms of the CJSWR an extended sentence was necessary given the appellant’s denial of the offences and his lack of insight into his offending which were a concern and limited the scope of any offence focused work which could be undertaken. The court quashed the period of detention of 6 years and imposed an extended sentence of 8 years of which the custodial element was 5 years.