Kieran Webster v. Her Majesty’s Advocate [2022] HCJAC 8

Note of appeal against sentence:- On 9 June 2021, at Dumbarton Sheriff Court, the appellant (then aged 23) pled guilty to three charges:- (charge 1) taking or permitting to be taken or making indecent photographs or pseudo-photographs of children on various occasions between 1 February 2019 and 22 February 2021 contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982; (charge 2) having in his possession indecent photographs or pseudo-photographs of children on various occasions between 1 February 2019 and 23 February 2021 contrary to section 52A(1) of the Civic Government (Scotland) Act 1982; and (charge 5) breaching a condition of bail by failing to provide devices capable of browsing the internet to the police when requested to do so on 23 February 2021. On 1 October 2021, following the obtaining of a Criminal Justice Social Work Report, the sheriff imposed a cumulo extended sentence of 66 months in relation to charges 1 and 2, comprising of a custodial term of 30 months and an extension period of 36 months. The starting point was a headline custodial term of 40 months reduced to 30 months to reflect the plea of guilty. In relation to charge 5 the sheriff sentenced the appellant to 6 months imprisonment. The sentence for charges 1 and 2 was consecutive to the sentence imposed on charge 5. The sheriff also imposed a Sexual Offences Prevention Order for a period of 5 years in respect of charges 1 and 2. The appellant appealed against the sentence imposed in relation to charges 1 and 2 it being contended that the sentence imposed was excessive. It was submitted that an extended sentence on charges 1 and 2 was incompetent as the sheriff had not been entitled to find that an extended sentence was necessary to protect the public from serious harm from the appellant as only material risk was of further non-contact offending by the appellant which was not sufficient to be serious harm within the meaning of section 210A(1)(b) of the Criminal Procedure (Scotland)Act 1995. It was further submitted that even if it had been competent to pass an extended sentence, the sheriff ought not to have done so because the making of the SOPO provided adequate protection for the public. It was further submitted that headline custodial term of 40 months was excessive having regard to the appellant’s age at the time of the offences, his history of mental health problems, and the nature and circumstances of the offences. Having regard to HMA v Graham 2011 JC 1 and the Sentencing Council for England and Wales’ Definitive Guideline it was submitted that the starting point of 40 months was excessive given the appellant’s youth, immaturity and mental health issues. Finally, it was submitted that 48 months being the totality of the headline sentences was excessive and a shorter sentence would have fulfilled all of the sentencing purposes. Here the court considered that, in light of Professor MacPherson’s report, the high risk of re-offending he pointed to was a risk of analogous non-contact offending and the harm to children which the sheriff identified and relied was the sort which the Court in Wood v HMA 2017 JC 185 ruled did not amount to serious harm within the meaning of section 210A. As such the sheriff’s reasoning for imposing an extended sentence was erroneous. The court went on to consider the matter de novo and considered, having regard to the circumstances of the offence and the appellant’s personal circumstances, these were insufficient to meet the requirements of section 210A(1)(b). The court noted that Professor MacPherson in his supplementary report concluded that the appellant did not pose a risk of serious harm to the public. The court was unable to impose a period of post-licence supervision as it was not available to the court as neither an extended sentence or a supervised release order was competent. The court observed that the case further demonstrated the need for possible reform of the law in this area. In relation to the appeal against the length of the sentence imposed in relation to charges 1 and 2 the court considered that it was not excessive in the circumstances. The appeal was allowed to the extent of quashing the extended sentence which the sheriff passed for charges 1 and 2 and substituting a sentence of 30 months imprisonment, discounted from 40 months to reflect the plea of guilty.