Allahbaksh Nadaf v. Her Majesty’s Advocate [2017] HCJAC 37

Note of appeal against conviction and sentence:- On 13 May 2016, at Aberdeen Sheriff Court, the appellant was convicted after trial on indictment of the following charges:- (1) sexual assault of KT (aged 12) contrary to sections 20 and 24 of the Sexual Offences (Scotland) Act 2009; (2) exposing himself to KB (aged 8) and approaching her and engaging her in conversation, contrary to section 25 of the 2009 Act; and (3) exposing himself to GG (aged 10) contrary to section 25 of the 2009 Act. On 25 July 2016, after obtaining a Criminal Justice Social Work Report, the trial sheriff imposed an extended sentence of 5 years and 3 months, 2 years and 3 months representing the custodial element, which was made up of consecutive periods of 9 months, 6 months and 12 months in relation to the 3 charges respectively including 3 months for a bail aggravation. The appellant appealed against his conviction in relation to charge 2 relating to KB. The appellant also appealed against the sentence imposed. It was contended on behalf of the appellant that there was insufficient identification evidence in relation to charge 2 to allow the doctrine of mutual corroboration to apply in that there was no positive identification of the appellant by the complainer. At a VIPER identification parade the complainer stated that the man had not been shown in the images although the appellant’s image “looked like” the perpetrator because he had “No facial hair.” A police sergeant identified the appellant on CCTV images around the time of the incident close to the locus. The appellant had stated during his police interview that he had been in the vicinity around the material time. Here the court refused the appeal against conviction. The court stated that the totality of the evidence in relation to charge 2 was sufficient on its own to prove the appellant’s involvement without the need to rely on mutual corroboration. In relation to the appeal against sentence it was submitted on behalf of the appellant that the appellant had the benefit of the protection of section 204(2) of the Criminal Procedure (Scotland) Act 1995 and, having regard to the appellant’s circumstances, custody was not the only appropriate disposal available. It was submitted on behalf of the appellant that there had been no direct skin contact with any of the complainers nor any breach of trust. In addition, it was submitted that the sheriff had failed to consider the cumulative effect of the sentences and had had failed to address the correct test for an extended sentence under section 210A of the 1995 Act, namely, whether the period of licence would be inadequate for the purposes of protecting the public from serious harm. It was further submitted that a Sexual Offences Prevention Order of 5 years which had been made and the fact that the appellant was subject to the notification requirements of the Sexual Offences Act 2003 for a period of 10 years meant an extended sentence was not necessary. Here the court considered that, in light of the nature and number of the charges, custodial sentences were appropriate and it could not be said that the cumulative effect of the consecutive custodial sentences was excessive. The court did consider, however, that the sentencing sheriff made a mistake in stating that the appellant would not be released on licence following his release as section 1AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 provides that the appellant would be on licence after his release due to the offence being a sexual offence involving notification requirements. As such the court quashed the extended sentence element of the sentence.