V.G. and C.Y. v. Her Majesty’s Advocate [2016] HCJAC 1

Notes of appeal against sentence:- The appellants were both convicted after trial in relation to a charge of forming a fraudulent scheme to have CY obtain parental responsibilities and rights as the father of a baby, B, who was born on 15 February 2011, of whom VG was the mother. The sheriff sentenced the appellants to three years imprisonment. The appellants appealed against their sentences. The circumstances of the offence were that VG and N entered into a sexual relationship as result of which baby B was conceived. Once the relationship ended during the pregnancy VG advised N that she intended to have a termination. CY, who knew VG, was homosexual, however, he wished to bring up a child. The appellants embarked on a scheme whereby VG pretended to have a termination but did not in fact do so. They also created a fictional character, Claire Green, who was to act as a surrogate mother/partner for CY. Following the birth of B on 21 February 2011 both appellants attended at the registry office where they signed the Register of Births registering VG as mother and CY as the father. In February 2011 N became aware that CY had been seen with a baby girl and he saw a picture of B on VG’s Facebook page which he thought resembled himself. N was suspicious and challenged VG about the child, however, VG told him that child was the baby conceived by CY and the surrogate mother Claire Green. In June 2011, the social work department of the local authority, having discovered that VG had given birth to a child advised N who pursued a civil case to establish the paternity of the child. In the summer of 2013, following a court order in relation to the obtaining and examination of DNA samples, the DNA samples were obtained from the appellants which proved that N was B’S biological father. During the course of the trial N described the experience as having been “four years of a nightmare”. In his report to the court the sheriff described the scheme as the “necessary artful and persistent deceit” and that only a custodial sentence was appropriate in what was described as a highly unusual case. Here it was submitted on behalf of VG that, whilst a custodial sentence was appropriate, the length of sentence was excessive having regard to her limited record of previous convictions, the criminal justice social work report indicated that there was unlikely to be any repeat of the offence, that there was no serious risk of harm nor public protection concerns and also the personal circumstances of the appellant which disclosed a troubled background. On behalf of CY it was submitted that he had no previous convictions and a clear alternative to custody in the form of a community payback order was available. It was submitted that, in the event that a sentence of imprisonment was appropriate, the length of the sentence was excessive having regard to the lack of previous convictions and the absence of a risk of serious harm to the community as considered in the terms of the criminal justice social work report. Here the court refused the appeals and described the fraudulent scheme as “callous, complex and sustained” which involved deceit over a number of years noting that it was only the court order which forced CY to provide a DNA sample. In all of the circumstances of this unusual case, in which there were no previous cases in point, the court considered that the sheriff was entitled to consider that the only appropriate disposal was that of a sentence of imprisonment and that he had adequately addressed the appropriate length of the sentence to impose.