Her Majesty’s Advocate v. John William Barbour [2018] HCJAC 36

Crown appeal against sentence:- On 7 February 2018, following a trial at Edinburgh High Court, the respondent was convicted of 3 charges and sentenced to 4 years imprisonment:- (1) a charge of lewd, indecent and libidinous practices and behaviour re conduct in 1979 involving repeated digital vaginal penetration when the respondent was aged 13/14 and the complainer was aged 4/5; (2) a charge of lewd, indecent and libidinous practices and behaviour re conduct with a different complainer in 1984 involving repeated digital vaginal and anal penetration and penile penetration of her mouth and anus, when the respondent was aged 18/21 and the complainer was aged 5/7; and (3) the repeated rape of the same complainer to her injury on various occasions. The Crown appealed against the sentence imposed it being contended that the sentence of 4 years was unduly lenient. In selecting a sentence of 4 years imprisonment the sentencing judge had regard to the fact that the respondent was a child at the time of the commission of the first charge and that 30 years had elapsed since charges 2 and 3. The sentencing judge referred to the guidance provided in Greig v. H.M.A. 2013 JC 115, namely, that the sentence had to take into account his age and immaturity at the time of the offences and that during the period since the offences the respondent had made a positive contribution to society. In addition, in light of the time that had passed, protection of the public was not a material consideration. It was submitted on behalf of the Crown that, notwithstanding the respondent’s age, the crimes were of such seriousness involving the repeated sexual abuse of very young girls that the sentencing judge had given too much weight to the age of the respondent, the passage of time since the commission of the offences, his character since the offending and the reduced need for public protection. On behalf of the respondent it was submitted that the sentencing judge was best placed, having heard the evidence at trial, to sentence the respondent. Here the court refused the Crown appeal against sentence. The court reiterated the test to be applied in such an appeal, namely, not just that the sentence was lenient, but that it was unduly lenient in that it fell below the range of sentences normally regarded as appropriate for offences of that kind. Here the court was not satisfied that the test for an unduly lenient sentence had been met. The court considered that the trial judge was best placed to assess the evidence of the complainers in the case along with the victim impact statements. Whilst the court recognised that the sentence was towards the lower end of the appropriate range, the sentencing judge provided a detailed and well-reasoned basis for selecting the sentence he did.