Her Majesty’s Advocate v. C.H. [2017] HCJAC 82

Crown appeal against sentence:- On 17 May 2017, at the High Court, the respondent pled guilty to two charges (charges (2) and (3)) and had his not guilty pleas to two further charges accepted by the Crown. Charge (2) was the oral rape and sexual assault of a male child under the age of 13 contrary to section 18 of the Sexual Offences (Scotland) Act 2009 and charge (3) was a charge relating to the taking or permitting to be taken or making indecent photographs of the same male child on the same day by videoing the sexual conduct contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982. On 20 July 2017, following the obtaining of a criminal justice social work report and a psychiatric report the sentencing judge imposed a cumulo sentence of three years and nine months’ imprisonment that sentence being discounted from 5 years on account of the plea of guilty. The respondent was also made subject to the notification requirements under Part 2 of the Sexual Offences Act 2003 for an indefinite period. The Crown appealed against the sentence imposed on the ground that it was unduly lenient. The circumstances of the offences were that the respondent was a good friend of the complainer’s father, JC. At the time of the commission of the offences the complainer was aged three years and 8 months. The respondent and JC would regularly visit each other’s homes, however, the respondent had never previously been left alone wit the complainer. On the day in question JC left the respondent alone in the flat with both the complainer and his elder brother to go and pick up JC’s partner from work. Thereafter the respondent penetrated the complainer’s mouth with his penis and filmed the conduct on his mobile phone. JC and his partner returned home to find the respondent sitting on a couch in the sitting room with the complainer’s brother, who was playing a computer game, when the complainer ran into the room and said “I ate your friend’s pecker”. JC asked the respondent what the complainer meant by this to which the respondent became irate and JC then dragged the respondent out the flat and he ran away leaving his jacket and mobile phone in the flat. The police were contacted and an oral swab from the complainer’s mouth disclosed the respondent’s semen. Interrogation of the mobile phone disclosed footage of the respondent placing his erect penis in the mouth of the complainer and the complainer was heard to say “I want to see the camera” and the respondent stated “Quick, quick. Before your daddy comes”. The footage lasted for five minutes and showed the complainer masturbating the respondent, before the respondent masturbated himself. It was submitted on behalf of the appellant that the sentence was unduly lenient and that the sentence imposed failed to reflect the gravity of the offences which involved a significant breach of trust with a very young child aggravated by the use of the mobile phone to record the conduct which lasted for five minutes. It was submitted on behalf of the appellant that the sentence imposed failed to satisfy the need for retribution, deterrence, and protection of the public and that in addition to a substantial period of imprisonment there ought to have been an extended period of supervision for the protection of the public imposed. It was submitted that the sentencing guidelines in place in England and Wales would have the conduct attracting a sentence in the range of 11 to 17 years’ imprisonment, with a starting point of 13 years’ imprisonment. It was further submitted that the trial judge’s failure to impose an extended sentence was further evidence of the unduly lenient nature of the sentence imposed. On behalf of the respondent it was submitted that for the Crown to succeed in such an appeal against sentence on the grounds of undue leniency the Crown had to show that the sentence fell outside the range of sentences which the sentencing judge, considering all the relevant factors, could reasonably have considered appropriate. It was submitted that the Crown had failed to establish that and the sentencing judge did have regard to all the relevant factors. Here the court allowed the appeal. The judge at first instance had raised a concern as to the competency of an appeal against a decision not to impose an extended sentence on the basis that where an extended sentence is not imposed that is not because the sentencer exercised leniency, but rather because it was not considered it to be necessary. The court here considered that there was no issue of competency where the Crown bases an appeal against sentence in whole or part on the basis that the failure of the sentencing judge to impose an extended sentence resulting in a disposal which was unduly lenient. The court considered that the sentence imposed here was unduly lenient, namely, that it fell outwith the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. Having regard to a number of other cases referred to in the appeal and the relevant Definitive Guideline formulated by the Sentencing Council for England and Wales which provides a cross-check the court considered that the sentence imposed was unduly lenient. Other than the absence of previous convictions the court noted that there were no mitigating factors present. The court did observe that using the English guidelines as a comparator may lead to a divergence in sentences in the different jurisdictions. The court, in considering the factors in the guidelines, categorised the offences as ‘2A’. The court quashed the sentence imposed and substituted a sentence of six years imprisonment in respect of charge 2 discounted from a headline figure of 8 years. In relation to charge 3 a sentence of 24 months imprisonment, was imposed discounted from 32 months to reflect the plea of guilty. To avoid any double counting, as the recording of moving footage was an aggravation which increased the sentence imposed in relation to charge 2, the sentences were to be served concurrently. Finally, the court did not consider it necessary to impose an extended sentence.