Douglas Sinclair v. Her Majesty’s Advocate [2018] HCJAC 34

Note of appeal against sentence:- At Perth Sheriff Court the appellant pled guilty on indictment to a contravention of section 28 of the Sexual Offences (Scotland) Act 2009, namely, having sexual intercourse with an older child, a 14 year old boy. On 14 February 2018 the appellant was sentenced to an extended sentence of 66 months comprising of a custodial element of 4 years with an extension period of 18 months. The custodial element of 4 years was discounted from 5 years to reflect the plea of guilty at a first diet. In selecting the sentence the sheriff had regard to the appellant having a conviction in 2003 for having sexual intercourse with an underage girl contrary to section 5(3) of the Criminal Law (Consolidation) (Scotland) Act 1995. Here it was submitted on behalf of the appellant that the sentencing sheriff had misunderstood the early release provisions as it appeared the sheriff thought that if the appellant commenced the Moving Forward Making Changes programme whilst he was in prison it was unlikely to be finished before he was released under the early release provisions and the sheriff considered it was necessary to impose the custodial term imposed and the extension period to follow. The court was advised here, by information provided from a relevant officer of the local authority, that if the appellant started the MFMC programme in prison and had not completed it on release he would be fast tracked onto the Tay Project community based MFMC programme. It was further submitted that in terms of section 210A of the 1995 Act the requirements for an extended sentence were not met. Here the court allowed the appeal. The court considered that the sheriff had misunderstood the current early release provisions and took the view that the starting point of 5 years was excessive. The court quashed the sentence and substituted a custodial term of 3 years imprisonment discounted from a starting point of 4 years to reflect the plea of guilty. The court did consider that an extended sentence was necessary and the 18 month extension period imposed by the sheriff remained in place.