D.S. v. Her Majesty’s Advocate [2017] HCJAC 12

Note of appeal against conviction and sentence:- On 27 April 2016, at Perth Sheriff Court, the appellant went on trial on indictment in relation to two charges of using lewd, indecent and libidinous practices and behaviour towards two complainers. At the close of the Crown case a ‘no case to answer’ submission was made in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 to the effect that the Crown had failed to corroborate the accounts given by each complainer. The Crown case was based upon the application of the doctrine of mutual corroboration and the sheriff repelled the submission. The appellant did not give evidence and he was convicted of the two charges by the jury. On 15 June 2016, after obtaining a Criminal Justice Social Work Report and a Tay Project Report, the sheriff imposed an extended sentence with a custodial term of 38 months and an extension period of 18 months comprising of 26 months imprisonment on charge 1 and 12 months imprisonment on charge 2 to run consecutively. The appellant appealed against conviction and sentence. It was contended on the appellant’s behalf that the sheriff had been wrong to repel the section 97 submission at the close of the Crown case in that the alleged offences were insufficiently connected in time, character and circumstances to allow the doctrine of mutual corroboration to apply. In particular it was submitted that:- (1) the period of time between the two charges was substantial, at least a period of six years and nine months and at most a period of ten years and seven months; (2) there were only two alleged offences committed against complainers of different sexes; (3) the nature and the gravity of the conduct in the respective charges was different in that the conduct libelled in charge 1 was over a significant period of time on various occasions, involving masturbation of the complainer and masturbation of the appellant, whereas the conduct in charge 2 was a single occasion involving a brief incident of touching of the complainer’s vagina; and (4) there was no special or extraordinary feature linking the offences. On behalf of the Crown it was submitted that there were sufficient similarities for the application of the doctrine. It was submitted that the case involved grooming of both complainers with the giving of gifts and the appellant inveigling himself in to the complainers’ families which was an important feature of similarity. In relation to the appeal against sentence it was submitted that a custodial sentence of 38 months was excessive in light of the nature of the conduct alleged in each charge, the appellant’s age and his limited record. After being raised by the court it was further submitted that the statutory criteria for the imposition of an extended sentence had not been met. In relation to the appeal against conviction the appeal was refused. The court considered that the sheriff was entitled to repel the section 97 submission at the close of the Crown case. The court pointed to points of similarity in particular the presence of grooming which provided the basis to demonstrate the requisite underlying unity of intent to allow the application of mutual corroboration. In relation to the appeal against sentence the only issue for which leave had been granted was in relation to whether the consecutive sentences of 26 and 12 months were excessive. The court considered that the sentences imposed were not excessive as these were contact offences against children whilst the appellant was in a position of trust and charge 1 was particularly serious given the repeated nature of the conduct. The court also went on to consider the competency of the imposition of the extended sentence in terms of section 210A Criminal Procedure (Scotland) Act 1995. The court observed that before a sex offender can competently be sentenced to an extended sentence three criteria must be met:- (1) the offender must be convicted on indictment of a sexual offence, as defined in section 210A (10); (2) the court must intend to pass a determinate sentence; and (3) the court must consider that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender. The court considered that there was nothing in the sheriff’s report to indicate that she had considered the criterion of risk of serious harm. As such, the court considered that the requisite criteria had not been met and the sheriff could not competently impose an extended sentence. The court went on to highlight concerns with the manner in which the sheriff imposed the extended sentence. The court reiterated that an extended sentence is a sentence of imprisonment comprising a custodial term and an extension period and not a sentence which is added on to a custodial sentence. Further, the section may allow an extended sentence to be imposed as a cumulo sentence in respect of a number of charges but the section does not allow the imposition of a number of separate determinate sentences of imprisonment which are then added together to make up the custodial term to which an extension period is then attached. The court considered that the sheriff, by adding “an extended sentence” to the two consecutive sentences, was in effect imposing a third sentence. The court quashed the sentences imposed and sentenced the appellant to 26 months imprisonment on charge 1 and 12 months imprisonment on charge 2 to be served consecutively.