Appeal Court calls for change to law on sentencing of offenders caught with indecent images of children

The judges said the current statutory tests for imposing the extended sentences had not been met, but added the Scottish Government and/or the Scottish Sentencing Council “may wish to consider” amending the law or issuing guidelines which would allow a “deterrent custodial sentence” to be combined with a period of “extended supervision” aimed at rehabilitation.

The court made the observations in the appeals against sentence by Kenneth Wood, Thomas Tennant and Darryl McLean, who each pled guilty to contraventions of the section 52 of the Civic Government (Scotland) Act 1982.

The Lord Justice General, Lord Carloway sitting with Lord Bracadale and Lord Malcolm, heard that the first appellant, Wood, was given an extended sentence of three years and four months with a custodial element of 16 months after a sheriff concluded that a non-custodial disposal would not reflect the gravity of the offences or meet the requirements of “punishment, denunciation and general deterrence”.

Although the CJSWR had assessed the appellant as being at “low risk” of sexual offending, the sheriff took the view that an extended sentence was “necessary to protect the public from serious harm”, as the period of licence involved in a conventional sentence would be “insufficient” in which to complete work involved in the Clyde Quay Project, a rehabilitation programme aimed at reducing re-offending.

Tennant, the second appellant, received an extended sentence of three years and eight months with a custodial element of eight months, after a sheriff considered that a custodial sentence was the “only appropriate one” and that an extended sentence would enable the appellant to complete the appropriate work with the project.

The extended sentence imposed upon the third appellant McLean was one of three years and nine months, with the custodial element being set at nine months, after the sheriff in that case again considered that only a custodial sentence was appropriate and the extended period would enable the appellant to attend the same project.

However, on behalf of the first appellant it was argued that the imposition of an extended sentence was “excessive”, and that, if that was correct, the sheriff had erred in holding that a non-custodial sentence was not appropriate.

It was submitted that an extended sentence was only competent where the court could be satisfied that the period during which the appellant would otherwise be on licence would be inadequate for the purposes of protecting the public from serious harm in terms of section 210A of the Criminal Procedure (Scotland) Act 1995.

In HM Advocate v Graham (2011), the Lord Justice Clerk (Gill) had stated that the Definitive Guideline on Sexual Offences issued by the Sentencing Council for England and Wales, published in 2007, should be used in all cases as long as it remained the pre-eminent classification of the relevant offences in the UK.

But there was now a clear provision in the updated 2013 Definitive Guideline to allow for the imposition of a community order, with a sex offender treatment programme requirement, as an “alternative” to a short or moderate length custodial sentence, where there was sufficient prospect of rehabilitation.

Similarly, the arguments for the second appellant were that the sheriff had erred in imposing an extended sentence, and that the imposition of a custodial sentence was excessive as a Community Payback Order would have been appropriate.

On behalf of the third appellant, it was argued that an alternative to custody was available in the circumstances and that the sheriff had, in effect, imposed two separate sentences as he thought that an extended sentence would be a “good idea” to enable him to complete the project’s sex offender programme.

Delivering the opinion of the court, the Lord Justice General said: “The reasoning behind the decisions to impose extended sentences in each case is understandable in that the sheriffs considered that, whereas a period in custody was the only appropriate sentence in terms of the guidelines in HM Advocate v Graham 2011 JC 1, a custodial term would not be sufficient to enable the offender to attend the Clyde Quay Project which was designed to reduce the risk of re-offending.

“However, that is not a legitimate use of an extended sentence. Section 210 of the Criminal Procedure (Scotland) Act 1995 makes it clear that such a sentence is only to be imposed where the court is satisfied that the period for which the offender would otherwise be subject to a licence would ‘not be adequate for the purpose of protecting the public from serious harm’.

“Although the sheriffs have attempted to justify the sentences in terms of the section, it is simply not possible to classify these appellants as posing a risk of ‘serious harm’ to the public were they to be released during the course of, or at the end of, the period of custody imposed.”

The judges added that when imposing an extended sentence “what is not currently an option is a custodial term combined with a community disposal”.

It therefore followed that, in each appeal, the extended element of the sentences were quashed, but the court rejected the arguments that the imposition of a custodial sentence in each case was excessive.

Lord Carloway said: “It is important to recognise that, notwithstanding the existence of an alternative, the Definitive Guideline has, as a starting point for the possession of Category A images, a custodial period of one year and a range of 6 months to 3 years. In the normal case, therefore, having regard to the Definitive Guideline, but not employing it in a mechanistic way, the starting point in each of the cases presently under consideration would be a significant custodial disposal.

“In cases such as this, as the Lord Justice Clerk (in HMA v Graham) continued, ‘the requirements of punishment, denunciation and general deterrence are paramount’. The court would expect the custodial sentences to act as a sufficient discouragement to the particular appellants from accessing such images in the future.”

The judges added that “the utility of using a deterrent custodial sentence combined with a period of extended supervision thereafter would, in cases such as those under consideration, seem clear, even if the current statutory tests for doing so are not met”.

“This is a matter which the Scottish Government and/or the Scottish Sentencing Council may wish to consider in due course,” Lord Carloway said.