Crown appeal against ‘unduly lenient’ extended sentence refused

A Crown appeal against the sentence imposed by a sheriff on a man who admitted taking or permitting the taking of photographs and videos of children and threatening young females that he would share the images via social media has been rejected.

 

Sean McCuaig, 22, was given an extended sentence of six years’ imprisonment after pleading guilty to an indictment libelling 35 charges, but the Crown argued that the sentence imposed was “unduly lenient” because it failed properly to provide for rehabilitation, risk assessment and risk management, and that the sheriff ought to have remitted the case to the High Court with a view to a judge making an Order for Lifelong Restriction.

 

However, the High Court of Justiciary Appeal Court ruled that disposal was not one which was outwith the range of sentences that could reasonably be considered appropriate.  

 

 

Lady Paton, sitting with Lord Malcolm and Lord Turnbull, heard that the respondent had pleaded guilty to charges of taking or permitting to be taken or making indecent photographs of children, distributing or showing indecent photographs of children, and possessing extreme pornographic images.   

 

The remaining charges to which pleas of guilty were tendered concerned communications which the respondent sent to the nine young female complainers, having contacted them via Facebook and threatened that he would post indecent images of them online if they failed to send him sexual images of themselves.

 

The offences came to light after some of the complainers, who were aged between 12 and 15, informed their parents or teachers, following which police officers attended the respondent’s home.

 

Forensic interrogation of computer equipment recovered established his responsibility for the various offences concerning the nine complainers, and more than 2,700 indecent still and moving images of children were also found on the device.

 

Also recovered from the respondent’s computer was a text document in which he had described a range of sexual scenarios created by him in relation to a number of teenage females, including two of the complainers, with references to abduction, rape and physical violence.   

 

After hearing the narrative of the circumstances, the sheriff called for a Criminal Justice Social Work Report and in addition called for two Forensic Clinical Psychology Reports; one prepared by Dr Lorraine Johnstone, the other by Dr Gary MacPherson, who respectively concluded that, “in the absence of any significant change or robust management of his risk, it is likely that Mr McCuaig will continue to pose a risk in the long term”, and that the respondent “presents a high risk of analogous offending at this time without any further supervision or intervention”.

 

Having considered the content of these reports, and having heard the respondent’s solicitor in mitigation, the sheriff imposed an extended sentence of six years’ comprising a custodial period of three years and an extension period of three years, while the respondent was also made subject to the notification requirements provided for by the Sexual Offences Act of 2003 for an indefinite period.   

 

 

However, the Crown’s contention in the appeal was that the sheriff ought to have concluded that the risk criteria specified in section 210E of the Criminal Procedure (Scotland) Act 1995 may have been met and ought to have remitted the case to the High Court, which would have given a judge of that court an opportunity to make a risk assessment order in terms of section 210B of the 1995 Act and then, if appropriate, an Order for Lifelong Restriction as provided for by section 210F.  

 

Whilst it was recognised that the sheriff stated in her report that she did not consider that the respondent may meet the risk criteria, the submission was that she was “clearly wrong”.

 

The advocate depute submitted that neither Dr MacPherson nor Dr Johnstone had identified any measure which they considered would be effective in managing the respondent’s risk, and in light of the absence of any such reassurance the sheriff’s view could not be supported.   

 

It was argued that the sheriff had placed “undue weight” on the risk of analogous non-contact offending, rather than taking into account the escalating behaviour in its totality, and that the imposition of an extended sentence “failed to provide an adequate degree of protection to the public” against the “high risk of serious sexual offending posed” by the respondent.   

 

But on behalf of the respondent, it was submitted that the sheriff, who was highly experienced, had provided a “coherent and reasoned explanation” for her decision. 

 

The psychological reports had identified the presence of risk of analogous re-offending rather than a risk of escalation to contact offending, and had identified various measures through which this risk could be “alleviated and managed”.  

 

The respondent was “keen to engage” with the type of risk management and rehabilitation programmes mentioned.  

 

The sheriff’s report made it clear that she had fully appreciated the content of the reports and had carefully assessed all that had been said, and it was argued that the decision which she arrived at was “an appropriate one”. 

 

 

The appeal judges were not persuaded that the decision to impose an extended sentence, rather than remitting the matter to the High Court for consideration of a Risk Assessment Order, could be characterised as a sentence which fell outwith the range of sentences which the sheriff could reasonably have considered appropriate.  

 

Delivering the opinion of the court, Lord Turnbull said: “The reasons for the sheriff’s decision in relation to risk assessment are set out in some detail in the report which she provided to this court.  

 

“She informed us that she took account of Dr Johnstone’s opinion, as expressed at paragraph 50 of her report, to the effect that ‘In the absence of any significant change or robust management of his risk it is likely that Mr McCuaig will continue to pose a risk in the long term’. She tells us that she understood Dr Johnstone’s reference to not being able to exclude an escalation scenario to mean that the major consideration in her assessment of risk was of further offending of an analogous nature, namely stalking of females and not the risk of actual sexual violence.   

 

“Having considered the content of the reports, the nature of the offences and the fact that the respondent was a first offender, the sheriff did not consider that the respondent may meet the risk criteria set out in section 210E of the 1995 Act. In arriving at this opinion she was influenced by the fact that Dr MacPherson had not said in his report that an Order for Lifelong Restriction was the only method of managing the risk posed by the respondent. Had he been of that view the sheriff was satisfied that he would have said so, given his experience in such matters.  

 

“She was also influenced by the fact that in Dr Johnstone’s conclusions on the appropriate methods of managing the respondent’s risk she stated that they should be “akin” to those required for an Order for Lifelong Restriction. Dr Johnstone did not express the view that such an order was an appropriate way to manage the respondent’s risk.

 

“In light of this assessment the sheriff goes on to explain that she took account of the fact that the respondent expressed a willingness to partake in any treatment programmes offered to him and she concluded that his lack of previous offending, and his acceptance of responsibility, indicated that a significant period of custody, followed by close management in the community, under the terms of a licence, would provide supervision, robust management and an opportunity for change. She therefore decided that an extended sentence would meet the need for the protection of the public from the risk of future harm by the respondent and adequately punish him.”  

 

He added: “It is plain that the sheriff gave careful thought to how to address the unusual and serious offending which the respondent engaged in. In her understanding of the two reports the principal risk which was identified was of further analogous offending. We do not consider that she can be criticised over this assessment.  

 

“Whilst the Crown’s contention comes to be that it was so glaringly obvious that the risk criteria may be met in the present case that the sheriff could not but have acted on that basis, we would simply observe that at no stage in either of the Forensic Clinical Psychology report do the authors state that the risk posed by the respondent cannot be managed by means of an extended sentence. Nor do they say that the respondent requires an Order for Lifelong Restriction, or that such an order should be considered.”