Crown appeal against lenient sentence of man who sexually assaulted niece upheld

At the original sentencing diet of the respondent, JB, aged 55, the sheriff made a community payback order as a direct alternative to custody. It was argued by the Crown that the sentenced imposed was unduly lenient having regard to the gravity of the offence and the respondent’s previous convictions.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, sitting with Lord Menzies and Lord Pentland. The Crown was represented by Edwards QC and the respondent by Stephenson, solicitor advocate.

On a “date”

In September 2018, the respondent’s wife discovered that she had a sister, B. Following the initiation of contact between the sisters, the respondent was introduced to B’s children, including the complainer, A, who was aged 10 at the material time. Following their meeting, the respondent began messaging A via text and WhatsApp messages.

Around the end of June 2019, the respondent and his wife had dinner with B and A at a public house. Whilst having dinner A announced that she was “on a date” with the respondent and everyone was to be quiet. Everyone at the table thought this was funny and allowed A to have her “date”. The respondent subsequently offered to take A to the cinema later in the month, which she agreed to.

Messages sent by the respondent to A during the course of June and July 2019 included statements that A looked “beautiful”, that he would dream about A, and that she was his “gorgeous girlfriend”. Reference was also made to how A’s lips were good for kissing.

In August 2019, while the respondent and his wife were at B’s family home to give the children presents following a holiday, he directed A into her bedroom where he squeezed her buttocks and kissed her on the mouth. He then told A that she was a “good kisser” and that he would go to prison if she told anyone what happened.

After the respondent and his wife left the house, the incident was reported to the police. The respondent was arrested the following morning, and subsequently pled guilty to two offences under sections 20 and 24 of the Sexual Offences (Scotland) Act 2009 in September 2020.

Having obtained a criminal justice social work report, on 23 October 2020 the sheriff made a community payback order as a direct alternative to custody with a supervision requirement for three years and a programme requirement requiring the respondent to participate in the Community Intervention Service for Sex Offenders (CISSO) for three years. It was noted that the respondent had two analogous previous convictions relating to female children known to the respondent aged 10 and 15, as well as two unrelated convictions.

The respondent told the author of the CJSWR that he agreed that the contents of his messages was inappropriate, but that the idea of a “date” was promoted by the other adults in the complainer’s life and was meant as a positive experience to make her feel special. He admitted that he had let his behaviour get out of hand, and that he had a pattern of misinterpreting the innocent behaviour of young children.

It was submitted for the Crown that the sheriff had failed to attach sufficient weight to the fact that this was a course of conduct by a trusted family member involving grooming a young child over several weeks. Further, there were significant similarities with the respondent’s previous offences, and too much weight had been attached to the age of those convictions.

Reprehensible in any circumstances

The opinion of the court was delivered by Lord Pentland. Noting that it was not suggested the sentencing sheriff had omitted any particular fact from his consideration, he said: “The sheriff stated in his report that undeniably the offences of which the respondent was convicted are serious. The author of the CJSWR observed that ‘all [his] offences are considered very serious’. We agree with each of these observations.”

He continued: “His behaviour involved a significant breach of trust. As is apparent from the exchange of messages set out in the agreed narrative, it involved a process of grooming a 10-year-old girl over a period of some five weeks, and culminating in quite inappropriate sexual contact with her. This would be reprehensible in any circumstances, but it is a particular concern against the background of the respondent’s previous convictions, two of which are closely analogous to his present offending.”

Highlighting the detail of the respondent’s grooming of the complainer, he said: “The clear aim underlying the grooming was to enable the respondent to gain access to the child in private with the intention, it may be inferred, of sexually abusing her.”

He continued: “So far as the ‘date’ episode is concerned, we would observe that whilst this appears to have started within the family as a sort of joke, and a way of making the child feel important, it was exploited by the respondent, who allowed and encouraged what should have been an innocent and passing fancy on the child’s part to develop into something much more serious, inappropriate and sinister.”

Referring to the comments made in the CJSWR, Lord Pentland said: “In our view, the author of the CJSWR was too willing to accept and be convinced by the respondent’s explanations and excuses for his conduct.”

He continued: “She seems to view the respondent as the victim of his own ‘lack of internal controls’ rather than the exploitative and manipulative sex offender that he shows himself to be. The content of the CJSWR is redolent of the respondent’s manipulative nature.”

Lord Pentland concluded: “The sentence contained no punitive element; it contained no real element of deterrence; and it seriously underestimated the gravity of the present offences (particularly the extensive grooming), against the background of the respondent’s closely analogous record of prior offending. In these circumstances, we are satisfied that the case was one in which the custody threshold was clearly passed.”

For these reasons, the appeal was allowed. The sentence imposed by the sheriff was quashed and substituted with one of 18 months’ imprisonment, reduced to 12 months by the respondent’s guilty plea.