Stephen Bell v. Her Majesty’s Advocate [2018] HCJAC 18

Note of appeal against sentence:- The appellant was convicted of contraventions of the Civic Government (Scotland) Act 1982 relating to the downloading and possession of indecent images of children. The appellant was sentenced to an extended sentence with a custodial element of 52 months. The appellant appealed against the sentence imposed on the basis that it was excessive and the statutory test for the imposition of the extended sentence had not been met. The circumstances of the case were described by the sentencing sheriff as being “about as bad a case of its kind as I could imagine” and involved a significant n umber of moving and still images within categories A, B and C. The sheriff reported that the appellant’s obsession with the downloading and viewing of child pornography was so consuming that he failed to carry out the most basic household tasks including not going to the toilet and defecating where he sat at his computer. Here the court considered that programmes would be available to the appellant whilst in custody and the period of licence he would be subject to, ranging between 6 and 26 months depending on when he was granted parole, would result in him being subject to close supervision and, as such, an extended sentence was unnecessary. The court also observed that the appellant had been made the subject of a Sexual Offences Prevention Order of indefinite length which focused on the appellant’s offending behaviour. It was also noted that the appellant was made subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 for an indefinite period. The court considered that the test for an extended sentence as set out in section 210A of the 1995 Act, namely that “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” had not been met. As such the court quashed the extended sentence imposed and substituted a sentence of 52 months imprisonment.