Crown loses appeal against ‘unduly lenient’ sentence for historical child sex offences

The Appeal Court of the High Court of Justiciary ruled that while the custodial term imposed was at the “lower end” of the appropriate range, it rejected the Crown’s argument that the sentence was “unduly lenient”.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Turnbull, heard that in February 2018 following a trial at the High Court in Edinburgh, the respondent John Barbour convicted of three charges, having denied the offences at trial.

Historical sex offences

The first charge was one of lewd, indecent and libidinous practices occurring in 1979, when the respondent was aged between 13 and 14 and the complainer was only four or five.

The second charge related to events in 1984 to 1986 when the respondent was aged between 18 and 21, and involved lewd, indecent and libidinous practices towards a second complainer, who was then aged about 5 to 7.

The third charge involved the same complainer and was that, on various occasions when the respondent was a lodger at the complainer’s mother’s house, he raped her to her injury.

The respondent’s personal circumstances were that he had been married for some 25 years and that he and his wife had brought up his wife’s three children, who were now in their 20s and 30s, and a child of their own, now also in her 20s.

The respondent had worked for some 30 years as a sales manager for Grampian Leisure, who were involved in the provision of arcade machines.

He had no previous convictions and the criminal justice social work report stated that while it was difficult to ascertain the likelihood of re‐offending, given that the offences had been committed more than 30 years ago, it was thought that any risk could not be managed within the community and there was no reason to suggest that he was now a high risk to the public.

Sentence

The trial judge sentenced the respondent to four years’ imprisonment, having taken into account that, at the time of the first charge, the respondent had been a child and that over 30 years had elapsed since the last of the offences in the second and third charges.

He sought to apply guidance from Greig v HM Advocate 2013 JC 115, to the effect that, although the respondent had to be sentenced as an adult offender, that sentence had to take into account his age, and hence relative immaturity, at the time of the offences.

The fact that, during the period since the offences, the respondent had made a “positive contribution” to society was important.

Protection of the public was not a material consideration, as it would have been had sentencing occurred shortly after the offending.

However, the Crown appealed on the basis that the sentence of four years was unduly lenient.

The advocate depute, Alex Prentice QC, submitted that, irrespective of the respondent’s age at the time of the offences, and the passage of time since they had been committed, the “abhorrent and seriousness nature of the crimes” committed against girls of such young age required to be reflected in the sentence.

It was argued that the judge had given “undue weight” to the respondent’s age at the time of the offences, the passage of time since the offences, the respondent’s lack of offending, his full pro‐social life since the offences and the decreased need for public protection.

Counsel for the respondent, Mark Stewart QC, supported the trial judge’s reasoning, citing the fact he had considered the CJSWR. He argued the Crown had sought to apply precedent to the individual elements of the offences rather than look at the offending as a whole. The sentence, while at the lower end of the range, was not unduly lenient.

‘Not unduly lenient’

Refusing the appeal, the judges agreed that although the sentence could be said to have been at the lower end of the available range, it was not unduly lenient.

Delivering the opinion of the court, the Lord Justice General said: “The test to be applied by this court, before it can interfere with a sentence of a trial judge is, of course, not just that the sentence was lenient, but that it was unduly so in the sense that it fell below the range of sentences normally regarded as appropriate for offences of the relevant kind. The court is not satisfied that this test has been met.

“The trial judge had the advantage of considering the whole circumstances and seeing and hearing the witnesses, including, notably, the complainers. He was able to evaluate the victim impact statements.

“His report is a well‐reasoned one, which justifies in some detail the approach which he took and the reasons for it. Although this sentence was at the lower end of the appropriate range, it was still within that range. The appeal is accordingly refused.”