Sex offender wins appeal against extended sentence

Lord Turnbull
Lord Turnbull

A man convicted of unlawful sexual activity with a 14-year-old girl has successfully challenged a sheriff’s decision to impose an extended sentence.

The Appeal Court of the High Court of Justiciary quashed the extension period after ruling that the sheriff failed to explain why she considered that the test imposing an extended sentence had been met.

Extended sentence

Lord Menzies and Lord Turnbull heard that the appellant Adam Tonkin, 26, pled guilty to an indictment which narrated that he engaged in unlawful sexual activity with a girl between February and March 2016, which included sexual intercourse on two occasions.

Having obtained a criminal justice social work report the sentencing sheriff imposed an extended sentence with a custodial part of 12 months imprisonment, reduced from 18 months for the first offender’s early plea, and an extension period of 12 months.

But the appellant appealed against the imposition of an extended sentence.

On the appellant’s behalf, criticisms were advanced concerning the sentencing sheriff’s reasons for deciding to impose an extended sentence.

Attention was drawn to what was said in the sheriff’s report, where the sheriff stated that she wished the appellant to be subject to “post-release supervision”.

It was argued that, on its own, this would “not be sufficient” to entitle the imposition of an extended sentence.

It was also observed that in any event the appellant would be subject to a period of post-release supervision in light of the provisions of section 1AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993, which was not acknowledged in the sheriff’s report.

Statutory test

Section 210A of the Criminal Procedure (Scotland) Act 1995 provides that an extended sentence may only be imposed if the court considers that the period for which the offender would otherwise be subject to licence would not be adequate for the purpose of protecting the public from serious harm from the offender.

But it was submitted that at no stage in the sheriff’s report did she address this test or explain why she concluded that the period for which the appellant would otherwise be subject to licence would be inadequate.

Further, no account appeared to have been taken in the assessment of risk posed by the appellant of the fact that the offending conduct occurred two years before the imposition of sentence and that the appellant had “kept out of trouble” in that period.

A number of criticisms were also advanced in the written case and argument concerning the criminal justice social work report.

It appeared from the content of that report that the authors had not been provided with a summary of the evidence or a copy of the Crown narrative, as the two authors of the report appeared to proceed upon the basis that the appellant had pled guilty to “sexual assault”.

The authors observed that the sexual assault which he perpetrated was illegal also in terms of the complainer’s age, when in fact the child’s age reflected the sole element of criminality.

It was therefore argued that the authors had misunderstood the nature of the criminality which the appellant had displayed, which “undermined” the value which the sentencing sheriff could place on the risk assessment and the other views expressed by the authors of the report.

‘Important misunderstanding’

The judges pointed out that the sheriff made plain in her report to the appeal court that she appreciated that the appellant had not pled guilty to an offence of sexual assault and she appreciated that the terminology in the social work report was inappropriate.

Nevertheless, the sentencing sheriff did take account of certain parts of the report and the judges said it was correct to observe that the authors appeared to have “laboured under an important misunderstanding” as to the nature of the offending to which the appellant pled guilty.

The court agreed that the value of the report was “diminished” and ruled that there was also “merit” in the criticisms of the sentencing sheriff’s overall approach.

Delivering the opinion of the court, Lord Turnbull said: “She does not explain that she took account of the fact that the appellant would be released on licence in any event, she does not at any stage of her report refer to the test provided for by section 210A of the 1995 Act and she does not explain why the period for which the appellant would be subject to licence would not be adequate.

“Furthermore, the sheriff does not explain why she concluded that the public required the ongoing form of protection she identified, despite the lengthy passage of time between the commission of the offence and the date of the sentencing.

“In all of these circumstances we are persuaded that the appeal ought to be granted and we shall quash the extended sentence imposed. In its place we shall impose a sentence of 12 months imprisonment reduced from the period of 18 months to reflect the guilty plea and sentence will date from the same date selected by the sheriff.”

© Scottish Legal News Ltd 2021

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