Sean Kelly v. Her Majesty’s Advocate [2018] HCJAC 17

Note of appeal against sentence:- On 28 September 2017, at Glasgow Sheriff Court, the appellant pled guilty to engaging in sexual activity with a boy, KM (aged 14 at the time), between 1 January 2015 and 2 July 2015, when the appellant was aged 47, contrary to sections 28 and 30 of the Sexual Offences (Scotland) Act 2009. The conduct involved KM penetrating the mouth and anus of the appellant with his penis and the appellant penetrating KM’s mouth with his penis. Following the obtaining of a Criminal Justice Social Work Report the sheriff imposed an extended sentence of 28 months with a custodial element of 19 months imprisonment. The circumstances were that the appellant and KM met through the appellant visiting a shop where KM worked part-time. The appellant and KM described themselves as being in a relationship albeit the appellant requested that KM keep it a secret. The appellant appealed against his sentence on the grounds that it was excessive it being submitted that a non-custodial sentence ought to have been imposed or, in the event that it was considered that custody was appropriate, the custodial sentence selected was excessive and an extended sentence was unnecessary. It was submitted on behalf of the appellant that he was a first offender to which section 204(2) of the 1995 Act applied and he had previously had a full employment history until he had to provide care for his terminally ill mother. The court was advised that the appellant suffers from anxiety disorder and depression for which he was being treated. In addition, it was submitted that he suffers from a condition, fibromyalgia, which affects his mobility and causes pain. In addition, it was submitted that there were a number of mitigating factors relating to his personal circumstances, along with him being assessed as presenting a low level of risk, which meant that the imposition of a custodial sentence was excessive. Here the court observed that the sheriff, in the manner he had calculated the sentence, had erred, in that he had discounted the headline extended sentence of 36 months to 28 months, comprising of a custody part of 19 months with an extension period of 9 months, to reflect the plea of guilty. Here the court noted that by discounting the overall headline sentence and thereafter allocating the custodial and extended elements of the sentence, the sheriff had discounted the extension period for public protection which was an incorrect approach as the length of any extension period should only be determined once the discounted custodial term has been selected. In addition, the court considered that the sheriff had erred in failing to apply the correct test for the imposition of an extended sentence. The sheriff indicated it was in “the public interest” that the extended sentence period be imposed to allow post-release work and supervision, however, given that the appellant would be classed as a short term prisoner subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 on release following completion of half of his sentence he would remain subject to licence in the community for the remainder of his sentence and would have been under supervision on release and subject to post-release work whether an extended sentence was imposed or not. The court reiterated that the terms of section 210A of the 1995 Act provide the only circumstances in which an extended sentence may be imposed, namely:- “where the court considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender” and not, as the sheriff indicated, that the imposition of the extended sentence was in the public interest. Here the court was satisfied that the sheriff had misdirected himself by imposing an extended sentence. The court was of the view, however, that notwithstanding section 204(2) being applicable to the appellant, the charge to which he had pled guilty was of sufficient seriousness that only a custodial sentence was appropriate. In the circumstances the court quashed the sentence imposed and substituted a period of 20 months imprisonment discounted form a headline sentence of 30 months to reflect the plea of guilty.