N.S. v. His Majesty’s Advocate [2025] HCJAC 24

Note of appeal against sentence:- On 29 November 2024 the appellant, then aged 20, was made the subject of an Order for Lifelong Restriction. The appellant was convicted on indictment of two charges committed when he was aged 18:- (1) abduction, assault and robbery involving a BB gun of a male complainer after the appellant invited him to spend the night at his flat following a party; and (2) sexual assault by compelling the complainer to remove his clothing, touching and masturbating the complainer’s penis, compelling the complainer to masturbate the appellant and oral rape. A punishment part of 4 years was selected by the sentencing judge, backdated to 7 December 2022. The appellant appealed against the sentence imposed contending that it was excessive, in particular, challenging the imposition of the OLR on account of his age. It was submitted on behalf of the appellant that the sentencing judge placed too much weight on a previous conviction of assault and robbery two months before the commission of the present offences which did not involve the use of a weapon. It was further submitted that the judge placed too much weight on the appellant’s continued denial of the sexual offence which the judge considered reduced his capacity to respond to rehabilitative measures in determining that only an OLR was appropriate. It was recognised that it was a matter for the sentencing judge to determine the level of risk having regard to all relevant factors, however, it was submitted the judge erred on the significance of denial. The Risk Assessor considered that the appellant posed a medium risk, however, identified a number of protective factors on which to build successful rehabilitation. It was further submitted that the appellant’s constructive response in prison strongly supported his ability to change and whilst the appellant maintained denial he was willing to complete sexual offending work. It was submitted that a sentence of detention of the level envisaged by the judge, namely, of a period of detention of 8 years as part of an extended sentence of 13 years, would have been sufficient. Here the court refused the appeal. The court considered the circumstances of the offences which included the appellant acquiring a balaclava and BB gun which suggested a degree of premeditation and that the offences involved a complainer, who was vulnerable due to his disabilities, being subjected to an ordeal of abduction, assault and sexual offending that endured for hours and has resulted in significant ongoing issues for the complainer. The court also noted the appellant’s ongoing minimisation/denial. The court noted that there were present some encouraging signs in the appellant’s attitude and his response to the regime in Polmont and that his personality was not fully formed and he may mature considerably which may reduce the risk posed. The court noted that the sentencing judge was required to, and did, weigh these positive factors against the appellant’s history of serious sexual misconduct and was correct to decide on a balance of probabilities that the risk criteria were met and that long-term supervision and monitoring will be necessary on the appellant’s release from prison and that the appropriate means of achieving it was by the imposition of an OLR.