Sex offender has sentence reduced following appeal

The High Court of Justiciary Appeal Court ruled that while the offence represented a “gross breach of trust” the starting point of 30 months selected by the sheriff, which was discounted by six months in light of the plea, was “excessive”.

‘Gross breach of trust’

Lord Menzies and Lord Glennie heard that the appellant Cameron Jackson, 21, was sentenced at Hamilton Sheriff Court on 27 March 2018 for a contravention of section 2 of the Sexual Offences (Scotland) Act 2009.

He was sentenced by the sheriff to imprisonment for two years, that being discounted from a starting point of 30 months to reflect the fact that he had tendered a plea of guilty at the first diet.

However, he appealed against sentence, arguing that the sheriff “erred” in imposing a custodial sentence; alternatively, that the period of two years was “excessive”.

The court was told that the appellant was “intoxicated” when the offence was committed, although it was of course acknowledged that that was “no defence” to the matter, nor any excuse.

The appellant drank alcohol rarely and accordingly was more affected by it than he had expected.

‘Out of character’

It was however submitted on behalf of the appellant by solicitor advocate Ann Ogg that the offence was “out of character” and that the appellant had been friendly with the complainer before this “unplanned incident”.

It was accepted that the offence represented a “gross breach of trust” but it was also pointed out that immediately after the offence and since then the appellant expressed remorse and apologised for his actions.

The criminal justice social work report was relatively positive and the court also heard that the the appellant had a good work record and that the job that he formerly held was still being kept available for him by his employer.

The appellant had not received any custodial disposal before and therefore was entitled to the protection provided by the Criminal Procedure (Scotland) Act 1995, it was submitted.

In all the circumstances, it was argued, this was not a case in which there was no other appropriate sentence than a custodial sentence, and in any event the sentence imposed was too high.

‘Excessive sentence’

Delivering the opinion of the court, Lord Menzies said: “We have considered all of the mitigatory features relied on by Ms Ogg but we remain of the view that this was a gross breach of trust by the appellant and despite his position of remorse and apology and his apparent empathy with the victim, it cannot be categorised as an error on the part of the sheriff that only a custodial sentence was appropriate.

“However, we are persuaded that the starting point of 30 months selected by the sheriff having regard to all of the factors to which we have referred was excessive and accordingly we shall quash the sentence of imprisonment imposed by the sheriff and substitute a sentence of 18 months imprisonment, that being discounted from a starting point of 24 months to reflect the early plea of guilty.

“The other aspects of the sheriff’s sentence will remain so that there will continue to be the notification requirement under the Sexual Offences Act and the non harassment order which the sheriff imposed will also be maintained.”