(1)Kenneth Wood; (2) Thomas Tennant; and (3) Darryl McLean v. Her Majesty’s Advocate [2017] HCJAC 2

Notes of appeal against sentence:- On 14 April 2016, at Glasgow Sheriff Court, the first appellant pled guilty, by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995, to a charge of making indecent images of children contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982 and a charge of possessing indecent images of children contrary to section 52A(1) of the Civic Government (Scotland) Act 1982. On 7 July 2016, the sheriff imposed an extended sentence of 3 years and 4 months, comprising a custodial element of 16 months, discounted from 24 months due to the early plea. On 14 July 2016, at Glasgow Sheriff Court, the second appellant pled guilty, by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995, to a charge of making indecent images contrary to section 52(1)(a) of the 1982 Act. On 18 August 2016, the sheriff imposed an extended sentence of 3 years and 8 months, comprising a custodial element of 8 months, discounted from 11 months due to the early plea. On 14 July 2016, at Glasgow Sheriff Court, the appellant pled guilty at a first diet to making indecent photographs of children contrary to section 52(1)(a) of the 1982 Act. On 18 August 2016, the sheriff imposed an extended sentence of 3 years and 9 months, comprising a custodial element of 9 months discounted from 12 months due to the early plea. All three appellants appealed against the sentences imposed on the grounds they were excessive. All three appeals were heard together to allow the court to consider whether the guidelines issued in H.M.A. v Graham 2011 JC 1, which had regard to the 2007 Definitive Guideline from the Sentencing Council of England and Wales, required to be updated following the Sentencing Council issuing the updated Definitive Guideline on Sexual Offences in December 2013. It was submitted on behalf of the first appellant that the imposition of an extended sentence was excessive and the sheriff had erred in holding that a non-custodial sentence was not appropriate. It was submitted on behalf of the second appellant that the imposition of an extended sentence was excessive and the imposition of a custodial sentence was excessive. It was submitted on behalf of the third appellant that an alternative to custody was available to the sheriff and that he was entitled to the protection of section 204(2) of the 1995 Act as the CJSWR indicated that he was suitable for a Community Payback Order involving a condition that he attend the Clyde Quay Project. Here the appeals were allowed in so far as they related to the imposition of the extended sentences. In relation to all three appellants an extended sentence had been imposed to enable each appellant to attend the Clyde Quay Project which was designed to reduce the risk of re-offending. That, however, was not a legitimate purpose for the imposition of an extended sentence as an extended sentence may only be imposed under section 210 of the 1995 Act where the court is satisfied that the period for which the offender would otherwise be subject to a licence would “not be adequate for the purpose of protecting the public from serious harm”. In the appellants’ cases there was no such risk highlighted. In relation to the question of whether the imposition of a custodial sentence was excessive the court refused the appeals. The court used the 2013 Guideline as a framework but stated that it should not be applied too rigidly and the sentence still depends upon the judgement and discretion of the sentencer having regard to the particular circumstances of the case. The court noted that albeit the 2013 Guideline makes reference to the possibility of a community disposal aimed at rehabilitation as an alternative to a short or moderate sentence that is consistent with the position in Scotland and section 204(2) of the 1995 which provides that a custodial sentence should not be imposed upon a person who has not previously been in custody, unless no other method of dealing with him is appropriate.