Ross Morrison v. Her Majesty’s Advocate [2019] HCJAC 14

Note of appeal against sentence:- On 24 October 2018, at Lerwick Sheriff Court, the appellant pled guilty by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a contravention of section 52(1)(a) of the Civic Government (Scotland) Act 1982, namely, taking or permitting to be taken or making indecent photographs of children. Following the obtaining of a Criminal Justice Social Work Report the sheriff imposed an extended sentence of 44 months, comprising of a custodial element of 20 months imprisonment discounted from 30 months on account of the plea of guilty, with an extension period of 24 months. The appellant appealed against the sentence imposed on the grounds that it was excessive, in particular, that the imposition of a custodial sentence was inappropriate or, alternatively, that the imposition of an extended sentence was inappropriate and that the custodial period selected was excessive. The circumstances were that that appellant’s laptop was forensically analysed and a number of moving and still indecent images of children were identified including 18 images at category A, all of which were inaccessible, 49 images at category B, all of which were inaccessible and 22,112 images at category C all of which were inaccessible, with the exception of 178 images. In deciding that there was no alternative to a custodial sentence and that a significant sentence was appropriate in the appellant’s case the sheriff described a number of aggravating features:- (a) the large number of images involved; (b) the period concerned, namely, 13 months, was significant; (c) the appellant had taken steps to hide his identity by using software to anonymise his use of the internet; (d) many of the images related to very young children; (e) some of the images involved extreme sexual acts; and (f) there were a further 60,043 indicative still and moving images. Here it was submitted on behalf of the appellant that the vast majority of the images were inaccessible having previously been deleted by the appellant and all category A and B images were inaccessible. With reference to the Definitive Guideline of the Sentencing Council for England and Wales it was submitted that the sheriff ought to have selected a lower categorisation for the purposes of sentence. Here the court considered that in light of the overall number of images and the nature and number of the images at each of level A and level B, a custodial sentence was appropriate. Whilst the fact that many of the mages were inaccessible as a result of the appellant deleting them the offence of making the indecent images of the children by downloading them was completed and the fact that they were subsequently deleted did not have a significant impact on the sentence. The court noted that the sentencing sheriff failed to give reasons as to why he selected a headline custodial sentence towards the upper end of the range for possession of category A images in a case involving a first offender in which 18 category A images were recovered. The court considered that, having regard to what was said in Wood, Tennant and McLean v HMA 2017 SCCR 100, together with the circumstances of the present case, the sentencing sheriff failed to identify a basis upon which he was entitled to conclude that the test for an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995 was met, namely, that the appellant posed “a risk of serious harm”. The court allowed the appeal and quashed the sentence imposed and substituted a sentence of 15 months imprisonment discounted to 10 months to reflect the early plea of guilty.