J.B. v. Her Majesty’s Advocate [2021] HCJAC 16

Crown appeal against sentence:- On 15 September 2020, at a first diet at Edinburgh Sheriff Court, the respondent pled guilty on indictment to two charges:- (1) a contravention of section 24(1) of the Sexual Offences (Scotland) Act 2009, by repeatedly sending sexual and written communications to a girl under the age of 13 by text messages and WhatsApp messages by repeatedly stating he would like to kiss and touch her, asking her to send him photographs of herself, repeatedly referring to taking her on dates and on holiday, making reference to her as his girlfriend and stating he would dream about her; and (2) a contravention of section 20 of the Sexual Offences (Scotland) Act 2009 by placing his arms around the same girl, lifting her body off the ground, touching and squeezing her buttocks, repeatedly kissing her with an open mouth and on the neck and sucking on her bottom lip. A plea of ‘not guilty’ to a further charge was accepted by the Crown. Following the obtaining of a criminal justice social work report, on 23 October 2020 the sheriff made a community payback order as a direct alternative to custody with a supervision requirement for three years and a programme requirement requiring the respondent to participate in the Community Intervention Service for Sex Offenders for three years. In addition, the respondent was made subject to the notification requirements under the Sexual Offences Act 2003 for the same period. The Crown appealed against the sentence imposed on the ground that it was unduly lenient. It was submitted on behalf of the Crown that the sentencing sheriff had failed to attach sufficient weight to the fact that this was a course of conduct by a trusted family member which involved the grooming of a young child over a period of six weeks, escalating over that period to include her sending photographs of herself and culminating in the respondent carrying out a contact sexual offence that he had been describing in his messages. Further, insufficient weight had been attached by the sheriff to consideration of the harm on the complainer and an assessment of the culpability of the conduct. The respondent had four previous convictions, two of which were analogous with the present case. On 29 October 1993 he was convicted on indictment at the sheriff court of lewd and libidinous practices and fined £750. On 18 June 2001 he was convicted of a contravention of section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995. He was sentenced to probation for three years with a community service order of 300 hours. It was further submitted that the sheriff attached too much weight to the age of the previous convictions and not enough to the similarities with the present case. It was recognised that the test to satisfy the court that the sentence was unduly lenient was a high one (HMA v Bell 1995 SCCR 244), however, it was submitted that the sentence failed to recognise the gravity of the conduct, the impact on the victim and the public interest in punishment, deterrence and the expression of disapproval of the respondent’s conduct and that the sentence imposed was unduly lenient. On behalf of the respondent it was submitted that the sheriff was correct to conclude that there was an appropriate alternative to custody available to the sheriff. Here the court, in applying the test set out in Bell v. HMA, considered that the sentence imposed was unduly lenient and allowed the Crown appeal against sentence. The court considered that that the sheriff has failed to recognise the gravity, deliberation and persistence of the grooming of the child. Furthermore, the court considered that the sheriff failed to attach sufficient weight to the respondent’s previous convictions which included the sexual abuse of female children. The court made reference to concerning elements of the CJSWR, in particular, his minimisation of the conduct and the manipulative way he had conducted himself. The court quashed the sentence imposed by the sheriff and substituted a sentence of 12 months imprisonment reduced from 18 months to reflect the plea of guilty and directed that the respondent will remain subject to the notification requirements for ten years.