N.P. v. Her Majesty’s Advocate [2022] HCJAC 24

Note of appeal against sentence:- The appellant pled guilty at a continued first diet to a charge of sexual abuse of trust contrary to section 42 of the Sexual Offences (Scotland) Act 2009. The appellant was sentenced to 27 months imprisonment discounted from a headline sentence of 36 months on account of the plea of guilty. The appellant appealed against the sentence imposed it being contended that it was excessive. The circumstances of the offence were that the appellant was a teacher at a school in Glasgow and between 9 December 2016 and 14 April 2019 she engaged in sexual activity with a female student between the ages of 15 and 18. The activity involved kissing, cuddling, touching, digital penetration of the complainer’s vagina, the performance of oral sex on the complainer and acts performed on the appellant by the complainer. The relationship ended when the complainer left school to go to university in 2019 but they kept in touch and the appellant visited the complainer in September 2019 when they engaged in consensual sexual contact in a hotel. In June 2020 the complainer broke up with the appellant in a telephone call but the appellant struggled with that and displayed manipulative behaviour by making repeated calls and threats to harm herself all of which caused the complainer considerable stress and she was admitted to hospital for 3 days losing 19 lbs in weight. The complainer made a disclosure to her doctor and the police became involved. It was submitted on behalf of the appellant that she had no previous conviction and shortly before the start of the relationship with the complainer she had come out of an abusive relationship and was at a low point in her life. The appellant had an impressive employment history working as a teacher for 20 years and having had a positive impact on the lives of many young people. It was submitted that the appellant had considered suicide as a result of the case and her teaching career was now lost to her. The appellant had expressed genuine remorse and there was a low risk of reoffending. It was further submitted that the sentencing sheriff had given insufficient weight to the particular circumstances of the case and the personal circumstances of the complainer and there was an appropriate alternative to a custodial sentence available to the court in the form of a Community Payback Order, or in the event that a custodial sentence was deemed necessary, the length of the custodial sentence was excessive. Here the court stated that in cases of this nature involving intimate sexual contact, a custodial sentence will be almost inevitable unless the circumstances are truly exceptional and the present case was not such a case. The court pointed to the particular position the appellant had in relation to the complainer, namely, the pastoral role she had with the complainer which enhanced the position of trust present. The court noted the degree of planning and grooming involved and the length and nature of the inappropriate relationship and, whilst remorse had been exhibited, the appellant had sought to apportion some blame upon the complainer when she was spoken to by the author of the Criminal Justice Social Work Report. The court considered, however, that the sentence was excessive and the headline sentence ought to have been 21 months and the sentence of 27 months was quashed and a sentence of 16 months was imposed.