Crown wins appeal against ‘unduly lenient’ sentence imposed on man who attempted to conspire to sexually abuse three-year-old girl

The Criminal Appeal Court ruled that the sentence of 18 months’ imprisonment imposed was “unduly lenient” as there was no element of post‑release supervision.

Allowing the appeal, the judges quashed the original sentence and imposed an extended sentence of four-and-half years’ imprisonment - a custodial term of 18 months followed by a three-year extension period on licence.

Lord Menzies, Lady Smith and Lord Brodie heard that Muriel Melville, who sexually assaulted a young girl and sent an indecent photo of the child to her lover, the respondent, Michael Leith, was jailed for 28 months.

Melville sent the picture to Leith, 48, whom she had met on an internet forum and the respondent, who admitted inciting his co-accused’s actions, was jailed for 18 months.

Both were placed on the sex offenders register.

In the Crown appeal the advocate depute submitted that the sentence imposed by the sentencing judge in respect of Mr Leith on 22 September 2015 was unduly lenient as that term was interpreted in the 1995 case of Her Majesty’s Advocate v Bell, namely, was the sentence imposed by the sentencing judge “outwith the range which the sentencer could reasonably have imposed”.

It was accepted on behalf of the respondent that what the respondent pled guilty to on 25 August 2015 at Edinburgh High Court was “abhorrent”.

But having regard to the fact that the respondent pled guilty to an attempt to conspire to do certain things, the judges agreed with the point made by counsel for the respondent that this was “about as far removed from the actual doing of those things as it is possible to get and still amount to criminality”.

And having regard to the fact that the respondent was neither named nor charged on an art and part basis with any of the offences of which the co-accused was convicted, and that there was no suggestion that he used any threats towards her, the judges were “unable to conclude that the custodial term imposed by the sentencing judge was unduly lenient”, but they did regard it as being “lenient”.

However, Lord Menzies continued, having regard to the terms of the criminal justice social work report, which was prepared by an experienced social worker specialising in addressing sexual offending, “we do consider that the sentence was unduly lenient in not imposing any element of post‑release supervision”.

The court noted that the author of the CJSWR stated that she had been trained in the use of “Risk Matrix 2000”, a tool used to determine risks of re-conviction.

Using the RM 2000 Mr Leith has been assessed as posing a “low risk of sexual re‑conviction”, but she went on to state that “Mr Leith targeted a vulnerable three-year-old child and while the true extent of his deviant sexual interests are unclear I would suggest children would be at significant risk whilst Mr Leith remains within the community”, and she ended this section of her report by requesting that consideration be given to imprisonment with a period of post‑release supervision.

But the appeal judges observed that the sentencing judge did not address the issue of post‑release supervision in his report to the court.

Delivering the opinion of the court, Lord Menzies said: “In light of this assessment and advice we consider that the sentencing judge’s sentence was unduly lenient to the extent that it did not include an extension period in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. For the avoidance of doubt we are satisfied that this offence amounts to a sexual offence by reason of section 210A(10)(xxviii) and section 210A(11)(a).

“We shall therefore quash the sentence of 22 September 2015 and substitute therefore an extended sentence of four-and-half years in terms of section 210A, the custodial term of which will be 18 months and the extension period of which will be three years. This sentence will be backdated to 11 December 2014 as was the sentence imposed by the sentencing judge.

“For the avoidance of doubt, certification under the Sexual Offences Act 2003 and the requirement for intimation to the Scottish Ministers in terms of section 7 of the Protection of Vulnerable Groups (Scotland) Act 2007 remain.”