‘Flasher’ wins appeal against ‘excessive’ custodial sentence

The Appeal Court of the High Court of Justiciary ruled that the sentence of 18 months imposed for each offence was “excessive” and that the “overall effect” of the consecutive sentence was also unwarranted, and the judges accordingly reduced the sentence to 12 months.

‘Sexual exposure’

Lady Paton and Lord Glennie heard that the appellant Leo Stewart was convicted of two charges of “sexual exposure”, contrary to sections 8 and 35 Sexual Offences (Scotland) Act 2009.

The accused had not previously been in custody and the sheriff dealt with the offences in the first instance by a non-custodial order, imposing community payback orders in respect of each of the charges.

Following breach of the CPOs new orders were imposed, but the accused breached those too.

In those circumstances the sheriff took the view that a custodial sentence was “necessary” and when the matter came back to him to deal with, he imposed sentences of 18 months’ imprisonment for each of these two offences, to run consecutively and to include six months in each case for bail aggravations.

The effect of that was that in respect of the two offences the accused was sentenced to a total of 36 months in prison.

‘Excessive sentence’

However, the appellant claimed that the disposal was “excessive”.

Allowing the appeal and quashing the sentence imposed, the judges held that the sheriff had failed to take all the facts and circumstances into account when considering the appropriate disposal.

Delivering the opinion of the court, Lady Paton said: “In circumstances such as the present, the court is required to sentence the accused afresh in respect of the original offences. In doing so in this case relevant factors were the accused’s age (he was 19 at the time of the first offence and 20 at the time of the second offence), his record (which was not extensive and was non-analogous), the fact that the accused had not previously been in custody, and of course, the nature of the offences.

“As to the latter point it should be noted that these offences, two incidents of sexual exposure, did not involve any physical contact between the accused and the complainers.”

‘Isolated incidents’

Further, the court observed there was nothing in the way the charges were set out in the indictment or in the manner in which they were described by the sheriff in his report to suggest that these were other than “isolated incidents or random acts of sexual exhibitionism”.

Nor was it suggested, for example, that they were targeted at any particular individual with a view to threatening them or as part of a campaign of harassment.

Lady Paton continued: “The sheriff does not explain in his report whether and how he took any of these matters into account. Although these offences may have caused alarm to the respective complainers, there is nothing in the sheriff’s report to suggest they were unduly alarmed and in each case they apparently both just walked on.”

She added: “We consider that a sentence of 18 months for each offence was excessive, even taking account of the inclusion within each sentence of six months for the bail aggravation. We propose to quash the sentences in respect of charges 2 and 3 and substitute in each case a sentence of 12 months for each charge, which includes three months for the bail aggravation in each case.

“As we have said, the sheriff made the sentences run consecutively, making a total of 36 months for the two offences. We think that the overall effect of this is excessive. Accordingly, in addition to reducing the sentence to 12 months on each charge, we will order that the sentences run concurrently.”