20-year-old who abducted teen with cerebral palsy, sexually abused him and threatened him with BB gun loses appeal against sentence

About this case:

• Citation:
  [2025] HCJAC 24
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Appellant NS, who was 18 when he committed the offences, argued that the sentencing judge had put undue weight on the sexual element of the offences in determining that an OLR was appropriate. The judge fixed a punishment part of four years, backdated to December 2022 following the appellant’s remand in custody and interruption by a nine-month detention for another charge.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Matthews and Lady Wise. Moggach KC appeared for the appellant and Stalker AD for the Crown.

Continued denial

In July 2022 the complainer, who was aged 18 and disabled with paraplegia on his left side resulting from cerebral palsy, attended a small party at the home of a female friend at which the appellant also attended. The complainer had intended to stay the night at the party house but there was no bed left. He accepted the appellant’s invitation to stay at his flat, arriving there at about 1am. The appellant showed him to the living room and went elsewhere.

When the appellant returned, he was wearing a balaclava and holding a BB gun, which the complainer thought was real. In his evidence, the complainer said that the appellant repeatedly hit him on the head whilst holding the gun, and that he was forced to undress and masturbate the appellant whilst being mocked for his disability. After punching him and knocking him out a few times, the appellant forced the complainer to perform oral sex on him. At about 7 or 8am, the complainer escaped, the appellant having taken his mobile phone after arriving at the flat.

The appellant maintained at trial that the BB gun was used as part of a prank, and that the sexual activity was consensual. It was noted that he had previous convictions for culpable and reckless conduct and assault and robbery, and that he had been known to social workers since the age of 11. It was also noted that when he was 12, his sister reported he had sexually abused her for around a year, which he admitted to the risk assessor.

For the appellant it was submitted that the judge placed undue weight on his view that the appellant’s continued denial of the sexual offence reduces his capacity to respond to rehabilitative measures in determining that only an OLR was appropriate. Whilst it was for the judge to determine the level of risk, he erred on the significance of denial. The court should not place undue weight on what he did to his sister when he was younger, that having been dealt with by the children’s hearings system.

Forensic awareness

Lord Beckett, delivering the opinion of the court, said of the seriousness of the offences: “We take a very serious view of the charges in this case. The acquisition of a balaclava and BB gun and the circumstances in which they came to be used are redolent of premeditation. The appellant showed forensic awareness in committing these crimes. He subjected the complainer, vulnerable by virtue of his disability, to an ordeal of abduction, assault and sexual offending that endured for hours.”

He continued: “The appellant continues to minimise the extent of what he did. He denies abduction and that sexual activity was non-consensual. Persistence in denial at this stage does not necessarily rule out successful rehabilitation but it presents an impediment. The trial judge was not alone in thinking so. It presented considerable difficulty to the risk assessor. The trial judge viewed denial alongside the appellant’s history of sexual offending and other behaviours. There is no reference to the judge’s treatment of denial in the note of appeal and there should have been if the appellant wished to found on it when the judge identified it as a consideration in his sentencing remarks.”

Considering the appellant’s past conduct, Lord Beckett said: “The appellant accepts that he has sexually offended in the past, against his younger sister, and he plainly did so seriously and repeatedly, and against a female member of staff in a children’s home before he committed the serious crimes on this indictment. We do not consider that his premeditated offending, sustained over hours, resulted from his taking intoxicants, even if he had consumed some alcohol and cannabis. Neither he nor anyone else suggests it prompted his behaviour and we reject senior counsel’s suggestion it might have done.”

He concluded: “We recognise that there are some encouraging signs in his attitude and response to the regime in Polmont. We acknowledge that his personality is not fully formed and he may mature considerably. If he does, this may reduce the risk he presents. The judge had to weigh such favourable indications against the appellant’s history of serious sexual misconduct. He was correct to envisage that long-term supervision and monitoring will be necessary on the appellant’s release from prison and that the appropriate means of achieving it, where he was satisfied on a balance of probabilities that the risk criteria were met, was an OLR.”

The appeal against sentence was therefore refused.