M.B. v. Her Majesty’s Advocate [2017] HCJAC 87

Note of appeal against sentence:- On 3 March 2017, at Dunfermline Sheriff Court, the appellant was convicted after trial on indictment of five contraventions of section 35 of the Sexual Offences (Scotland) Act 2009 (charges 1, 2, 4, 6 and 7), namely, indecent exposure towards young girls between 30 December 2014 and 29 October 2015. The appellant was acquitted of 4 further charges that alleged the same conduct. On 24 April 2017 the sheriff, having obtained a Criminal Justice Social Work Report and a forensic psychologist’s report, imposed an extended sentence of 33 months comprising a custodial term of 21 months (3 months related to a bail aggravation on charge 7) and an extension period of 12 months in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. The appellant appealed against the sentence imposed on the grounds that it was excessive, there being alternatives to a custodial sentence being available. It was contended that the offences were not ‘contact offences’ and were bizarre rather than sinister. It was further submitted that the appellant had observed a curfew condition in relation to his bail and that whilst he had a previous conviction for sexual assault on an adult that was his only previous conviction and he had never received a custodial sentence previously. It had initially been the position advanced on behalf of the appellant that that there were alternatives to custody but if custody was necessary then the sentence was excessive and it had also been submitted that an extended sentence was unnecessary. However, during the course of submissions the position advanced was that a custodial sentence was appropriate, however, the length of the custodial sentence was excessive and that the imposition of an extended sentence was incompetent. It was submitted on behalf of the appellant that the CJSWR had highlighted a number of protective factors and the psychological report assessed him as at moderate risk of reoffending. The CJSWR assessed him as being at the bottom of the medium grade of risk of reoffending and only just met the criteria for the Scottish Government approved sex offender group work programme. It was submitted on behalf of the appellant that the sheriff had failed to specify why the license period that would relate to an appropriate determinate sentence would not have been sufficient to protect the public from serious harm. Here the court allowed the appeal in so far as it related to the imposition of the extended sentence. In addition to the criticism of its imposition on behalf of the appellant the court also considered that it was not satisfied that the sheriff had sufficient material before him to conclude that the appellant presented a risk of “serious harm” to the public as required by section 210A of the 1995 Act. The court noted that whilst there was a previous conviction for a sexual assault against an adult that was not a sufficient reason for the sheriff holding that the appellant presented a serious risk of harm. The court quashed the extended sentence. As was conceded on behalf of the appellant the court considered that a sentence of imprisonment was the only appropriate disposal having regard to the offences amounting to a course of conduct over a period of 10 months that were distressing to the young girls concerned. The court noted that charge 7 was committed during the course of a Community Payback Order (imposed in relation to the previous sexual assault). The court here imposed a sentence of imprisonment of 21 months including 3 months in relation to the bail aggravation.