Her Majesty’s Advocate v. G O’D [2019] HCJAC 33

Crown appeal against sentence:- On 7 November 2018, at a Preliminary Hearing at Glasgow High Court, the appellant pled guilty to two charges contrary to the Sexual Offences (Scotland) Act 2009. On 16 January 2019 the appellant was sentenced to periods of detention under section 207 of the Criminal Procedure (Scotland) Act 1995. During the course of mitigation on behalf of the respondent the court was advised that the respondent was the subject of a compulsory supervision order in terms of the Children’s Hearings (Scotland) Act 2011 imposed on 21 June 2018 which had been continued without variation on 11 December 2018. It had been submitted that any period of detention should be made in terms of section 208 of the Criminal Procedure (Scotland) Act 1995 as opposed to section 207 meaning that the respondent’s detention would have taken place in such place and on such conditions as directed by the Scottish Ministers. Reference had been made to a summary case of Anderson v McGlennan 1998 SCCR 552 where the imposition of a sentence of detention on a statutory child was not competent that the sentence of detention should have been imposed under section 44 of the 1995 Act. It was submitted here on behalf of the Crown that the Children’s Hearing (Scotland) Act 2011 had amended section 307 of the Criminal Procedure (Scotland) Act so that “child” for the purposes of that Act is now defined by reference to the 2011 Act, something which the sentencing judge had not had regard to. The respondent fell within the definition of “child” in section 307 of the Criminal Procedure (Scotland) Act 1995, being someone between 16 and 18 subject to compulsory measures of supervision and any sentence to be imposed ought to have proceeded under section 208(1) of 1995 Act, and it would be the Scottish Ministers who would direct the place and conditions for the detainment. Here the court agreed that the respondent was a “child” at the time of being sentenced and the correct section to sentence under was section 208 of the 1995 Act, which provides that children may also be the subject of a sentence of detention, but in these cases that detention shall be in such place and subject to such conditions as may be directed by the Scottish Ministers. The court allowed the appeal and quashed the sentence imposed and substituted periods of detention under section 208 in such place and on such conditions as the Scottish Ministers may direct, consisting of:- (1) 19 months in respect of charge 2; and (2) an extended sentence in terms of section 210A of the Criminal Procedure (S) Act 1995 for a period of 6 years and four months comprising of a custodial term of two years and four months and an extension period of four years in respect of charge 6.