Man convicted of sexually touching child over six years has sentence reduced by Sheriff Appeal Court

William Hepburn, aged 79 at sentencing, was originally sentenced to 12 months’ imprisonment after being convicted of contraventions of sections 3 and 30 of the Sexual Offences (Scotland) Act 2009. He argued that the sheriff who sentenced him had imposed an excessive sentence and failed to have regard to the Criminal Justice Social Work Report prepared on his behalf.

The appeal was heard by Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriffs Norman McFadyen and Sean Murphy QC. The appellant was represented by Findlater, advocate, and the Crown by Farquharson QC.

Irregular procedure

The first charge on which the appellant was convicted was of sexually touching a complainer in the two years and nine months before she turned 16. The second charge was of a continuation of this conduct until December 2017, by which point the complainer was aged 20. He was convicted at trial by a sheriff in November 2020, at which point his sentencing was adjourned to obtain a CJSWR.

Having received the CJSWR, the trial sheriff did not find it of any help as the appellant continued to deny his guilt, concluding that the author of the report had failed to effectively challenge the appellant as to his version of events. The case was continued to allow the sheriff to meet with the author of the report, and in April 2021 the appellant was sentenced to the maximum available custodial sentence on summary complaint.

In her report, the sheriff stated that, while the appellant had never served a custodial sentence before, no less than the maximum sentence was appropriate given the serious nature of the offence. In her view, a community disposal would have no deterrent value and “fail utterly to express the disapproval society has” for the appellant’s egregious behaviour.

It was argued by the appellant that the sheriff had sought to excessively punish him, and she had indicated her desire to do so from the date of conviction. The meeting with the author of the CJSWR was highly irregular procedure and indicated that she had closed her mind to the issue of sentence and to non-custodial alternatives.

Counsel for the appellant further submitted that the sheriff had paid lip service only to the requirements of section 204 of the Criminal Procedure (Scotland) Act 1995, which required the court to impose a first-time custodial sentence only if it considered no other method to be appropriate andhad erred in characterising a community sentence as “no sentence at all”.

Unwise decision

Delivering the opinion of the court, Sheriff Principal Stephen said of the trial sheriff’s conduct: “The sheriff’s decision to engage directly with the author of the CJSWR outwith the presence of the parties is highly irregular. It matters not that the defence solicitor was given the opportunity to seek a meeting separately with the criminal justice social work department. We cannot see that that is of any assistance or ameliorates this irregular procedure.”

She continued: “It can be argued that the sheriff had shown bias, or the appearance of bias, towards the appellant and that she was determined to impose the maximum custodial sentence despite the terms of the CJSWR.”

On whether the sheriff had demonstrated any bias, she went on to say: “The sheriff developed an improper form of proceeding in the absence of any other party by having the meeting with the author of the criminal justice social work report in private. That in itself is irregular and raises the question whether there was, at least, the appearance of bias in so doing. This unwise decision on the part of the sheriff produced no discernible outcome in the sense of there being a supplementary CJSWR prepared, but does serve to underline her dissatisfaction with what she clearly thought was a report which leant too far towards the accused.”

Sheriff Principal Stephen concluded: “In these circumstances, and given that the sheriff has failed to provide a supplementary report to the appeal court on the statement of facts in the bill of suspension, we are entitled to conclude that the procedure adopted by the sheriff has left her open to the criticism that she was determined to challenge, in private, the author of the CJSWR as to the content of the report which she found painted too favourable a gloss on the appellant: his attitude to the offences and his personal circumstances.”

Addressing the appropriate disposal in the circumstances, she added: “Standing the charges of which the appellant has been convicted, we are of the view that a custodial sentence is the only appropriate sentence standing the nature and gravity of the offending which took place over a significant period of time involving the same complainer. However, having regard to the appellant’s circumstances we consider that it is not necessary to impose the maximum sentence on summary complaint.”

For these reasons, the appellant’s original sentence was quashed. In its place, the Sheriff Appeal Court imposed a sentence of 8 months’ imprisonment.