Ex-teacher who engaged in sexual activities with Shetland school pupils has sentence reduced on appeal

Kieran Malcolmson was convicted of one offence under the Sexual Offences (Amendment) (Scotland) Act 2000 and another under the Sexual Offences (Scotland) Act 2009. He was originally sentenced to concurrent sentences amounting to 15 months’ imprisonment.

The appeal was heard by Lord Pentland and Lord Doherty. The appellant was represented by Ogg, solicitor advocate, and the Crown by Prentice QC.

Systematically pursued course

The first offence occurred in 2009 when the appellant was almost 24. The charge extended to kissing the complainer on the mouth and penetrating her vagina with his fingers. The second offence occurred in 2018 and involved a then-16 year old complainer. The details of the second charge were that the appellant, then aged 33, kissed the victim on the mouth and repeatedly asked her to accompany him to a dark and secluded area.

Both offences occurred in an area where young people, including pupils from the appellant’s school, met up late at night, often to consume alcohol. At the time of both offences the appellant was intoxicated by alcohol. The sentencing sheriff observed that both offences appeared to include an element of premeditation as the appellant tried in both cases to get the complainer alone.

In sentencing the appellant, the sheriff noted that the appellant had no previous convictions and would never work as a teacher again. He had been assessed in the criminal justice social work report as being at a low risk of further offending, with a recommendation for a community-based sentence. Nonetheless, the sheriff took the view that the seriousness of the offences and the fact that the appellant had engaged in a systematically pursued course of criminal conduct meant that the only appropriate disposal was a custodial one.

It was submitted for the appellant that a custodial sentence was inappropriate, or alternatively that the length of sentence imposed was excessive. There had been no element of grooming in either offence, and the CJSWR had been on the whole favourable to the appellant. Counsel also brought attention to the smaller age gap between the appellant and the complainer in the first charge and the reduced severity of the second.

Serious breaches of trust

Delivering the opinion of the court, Lord Pentland observed: “As the Sheriff aptly observed, both offences in the present case involved serious breaches of trust by the appellant. The sexual activity in charge 1 included digital penetration of the victim’s vagina and penile penetration of her mouth. At the time he committed both offences the appellant was under the influence of alcohol.”

He continued: “Annex A to the Sentencing Council for Scotland’s ‘The Sentencing Process’ Guideline and the Sentencing Council for England and Wales ‘Overarching Guidelines’ both recognise that a perpetrator’s voluntary intoxication can be an aggravating factor. We have no doubt that in the present case the appellant’s intoxication was a significant aggravating feature.”

Turning to the other aggravating features, he said: “We consider that the Sheriff was well-founded in his view that the offences involved some degree of premeditation on the part of the appellant. In the case of charge 1 he engineered a situation in which he found himself alone with the victim. So far as charge 2 is concerned, the appellant repeatedly invited the victim to accompany him to a secluded place after he had kissed her. It is important also to note that the appellant has expressed no remorse for what he did.”

He went on to say: “On the other hand, we accept that there was no grooming of either victim. We note also that at the time of the offence in charge 1 the appellant was not yet 24 and was therefore still a relatively immature young man, and that the age difference between him and his victim was less than 7 years.”

Lord Pentland concluded: “Young persons must be protected from sexual abuse and exploitation by persons entrusted with their care, welfare and education. Taking account of the aim and purpose of the legislative provisions, and all of the other relevant factors, we are satisfied that the Sheriff was right to take the view that the nature and gravity of the offences, taken together, could only properly be marked by the imposition of a custodial sentence. We are persuaded, however, that the length of the custodial term selected by the Sheriff was excessive.”

For these reasons, the Sheriff Appeal Court quashed the sentences imposed on the appellant and substituted a single cumulo sentence of 12 months’ imprisonment.