High Court leaves 18-year extended sentence for sexual offender unchanged after Crown appeal

About this case:

• Citation:
  [2024] HCJAC 22
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Respondent Alistair Fergusson was convicted of 16 sexual offences against four different complainers, and received what was ultimately deemed a 14-year custodial sentence with a 4-year extension period. It was accepted by the respondent that the judge’s division of the offences into separate groups with separate sentences had created problems, but he maintained that the practical effect of the sentence was within the range of reasonableness.

The appeal was heard by the Lord Justice General, Lord Carloway, with Lord Matthews and Lord Boyd of Duncansby. The Lord Advocate, Bain KC, and Harvey, advocate depute, appeared for the Crown and Keegan KC for the respondent.

Derisory periods

On 15 November 2023, at the High Court in Aberdeen, the respondent was convicted of 16 sexual offences against four different complainers; two of whom were his former partners and two were the daughters of one of those partners. Charges 1 to 4 libelled indecent assaults against his partner TA, and charges 7 to 14 involved sexual offending against TA’s daughter, NB. The remaining charges involved another daughter of his partner, SB, and the final group involved sexual assaults against a complainer, SS, when she was aged between 16 and 18 and the respondent was 50.

At the High Court in Dundee, the sentencing judge imposed multiple different sentences in respect of each group of charges. On charges 1 to 4 he imposed two years’ imprisonment in cumulo. A further eight-year period of imprisonment was imposed for the offences against NB, although he did not state whether this was consecutive or concurrent with the first 2 years.

The judge imposed concurrent sentences of 1 year in respect of the two convictions involving SB, which were to run concurrently with those involving NB. He then said that all of the sentences involving NB and SB were to run consecutively to those involving TA. The judge added a consecutive four-year term for the fourth group of charges involving SS. He then ordered an extension period of 4 years, but it was unclear which sentence that was to apply to.

It was submitted for the Crown that the sentences selected fell outwith the appropriate range. The judge failed to have proper regard to the purposes of sentencing and had incompetently imposed an extended sentence. By imposing consecutive sentences, the judge was forced to select derisory periods in order to fit his overall vision. What ought to have been imposed was a single cumulative sentence reflecting the scale of the criminality.

Better position to assess

Lord Carloway, delivering the opinion of the court, said of the sentencing process: “What ought to occur, if a cumulative sentence is selected, is that the judge should explain, at the time, what sentence would have been selected had the offence, or group of offences, stood alone and why a cumulative sentence of a lesser amount than the sum of the various sentences had been selected.”

He explained further: “In this case, the sentencing judge selected periods of custody (2 and 4 years) which could, if looked at on their own, readily be seen as unduly lenient for, respectively, repeated attempted and completed rapes. The trial judge must have recognised this when, in his report, he stated that, had these groups stood alone, he would have imposed 5 and 6 years respectively.”

On the competency of the extension, Lord Carloway said: “Although charges 11, 16 and 17 carried a maximum sentence of 10 years, it is quite competent in solemn proceedings to impose a cumulative sentence in excess of the maximum provided that it is explained that had the particular offence been sentenced separately, a penalty within the maximum permitted would have been selected. This is what is frequently done with Orders for Lifelong Restriction.”

He concluded: “The court is conscious of the errors made, but it also appreciates that the trial judge heard the evidence led and ought to have been in a much better position to assess the gravity of the offending than this court. If this court were to ask itself the question of whether an extended sentence of 18 years, with a custodial part of 14 years, was unduly lenient, it would have to answer that in the negative. Alternatively, if the court were to quash the sentence because of the errors, and substitute its own sentence, it would reach the same overall result as the trial judge.”

It was therefore held that the extended sentence of 18 years should remain.