Her Majesty’s Advocate v. Michael McCarthy [2021] HCJAC 46

Crown appeal against sentence:- On 6 August 2021, at Edinburgh High Court, the appellant was sentenced to 5 years imprisonment having been found guilty after trial of 5 charges:- (1) attempted rape of a male, contrary to section 1 of the Sexual Offences (Scotland) Act 2009; (3) sexual assault of a 17 year old male contrary to section 3 of the 2009 Act; (4) taking indecent photographs of a child (the complainer in charge 3), contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982; (5) possession of indecent photographs contrary to section 52A(1) of the 1982 Act; and (6) distributing indecent photographs, contrary to section 52(1)(b) of the 1982 Act. The respondent was sentenced to imprisonment for 5 years on each of charges 1 and 3, 2 years on each of charges 4 and 5, and 3 years on charge 6, all sentences to be served concurrently and backdated to when he was first remanded in custody, namely, 19 August 2019. The respondent was also made subject of the notification requirements of the Sexual Offences Act 2003. The Crown appealed against the sentence imposed it being contended that the sentence was unduly lenient. The respondent had a number of previous convictions including numerous convictions for violence for which he had received terms of  detention and imprisonment. He had a 2014 conviction at the high court for assault by threats, involving a knife, theft by opening a lockfast place and fraud, resulting in imprisonment for 18 months, in addition to a return order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 for a period of 6 months. He also had numerous convictions under the Firearms Act for which he had received sentences of imprisonment. The trial judge decided to call for a Criminal Justice Social Work Report, incorporating a Risk Assessment, for the purpose of considering an extended sentence, but the respondent declined to be interviewed during the first adjournment for that purpose. The respondent’s solicitor-advocate made available a previous Criminal Justice Social Work Report, which had been prepared for a court hearing on 21 December 2018 and the sentencing judge was invited to proceed to sentence on the basis of that report. The judge took the view that whilst he would have regard to that report as background, he considered that it could not form the basis for an extended sentence given the terms of section 210A(4) of the 1995 Act which in his opinion required an up-to-date report whereas the CJSWR he had before him related to a charge of attempted housebreaking with intent to steal and it was the respondent’s position he was drunk at the time. The sentencing judge considered that a cumulo sentence of 5 years was sufficient to mark the gravity of the assaults, committed against vulnerable victims. It was submitted on behalf of the Crown that the sentencing judge ought to have imposed an extended sentence on the basis of the CJSWR available, or alternatively called for a up-to-date CJSWR even if the respondent did not co-operate with it. It was submitted that the purpose of an extended sentence was to give an offender the opportunity to reintegrate into society while being subject to close supervision. Furthermore, in light of the gravity of the offences and the respondent’s record of previous offending it was submitted the sentence was unduly lenient having regard to the test as set out in HMA v. Bell 1995 SCCR 244. On behalf of the respondent it was accepted the sentence was lenient but not unduly so as the sentence selected fell within the range which could reasonably be considered appropriate. It was submitted that the respondent’s circumstances had not changed significantly in the period between the calling of the CJSWR available and the time of sentencing for these offences and there was sufficient material before the trial judge for an extended sentence to be imposed if that was considered appropriate. Here the court granted the Crown appeal against sentence in relation to charges 1 and 3. The court considered that the sentence imposed in relation to those charges was unduly lenient and an extended sentence ought to have been imposed as the CJSWR which was available was sufficiently recent and up-to-date for it to satisfy the requirements of section 210A(4) where there is no time limit specified. In light of the nature of the offences and the respondent’s record of previous offending the court considered that the respondent was a high risk of endangering the public and that the conditions of an ordinary licence would be sufficient to protect the public when released from prison and the imposition of an extended sentence was necessary. The court quashed the sentences of 5 years imprisonment on each of charges 1 and 3 and in their place substituted a cumulo sentence of an extended sentence of 10 years imprisonment, comprising of a custodial element of 7 years and an extension period of 3 years from his first remand. The other sentences on the other charges remain the same.