About this case:

• Citation:
  [2025] SAC Crim 6
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal S F Murphy KC

Appellant MD, who was aged 18 when he committed the offence, pled guilty at an accelerated diet in Edinburgh Sheriff Court and was made subject to notification as well as given a £400 fine, reduced from £600 for the timing of his plea. He argued that the sentencing sheriff had erred in not considering obtaining a report to assess the suitability of a community payback order.

The appeal was heard by Sheriffs Principal Aisha Anwar KC and Sean Murphy KC, with A Ogg, solicitor advocate, appearing for the appellant and Farrell, advocate depute, for the respondent.

Awareness of impact

On 1 January 2025, the appellant was at a New Year’s event at Garibaldi’s, a popular student club, when he sexually assaulted a female complainer, EK, by placing his hands down her trousers and seizing her buttocks. When she attempted to leave the dance floor, he prevented her from doing so and pushed himself towards her. He later seized another female complainer, FB, on the buttocks, all contrary to section 3 of the Sexual Offences (Scotland) Act 2009.

In mitigation it had been submitted that the appellant was 18 years old and a first offender. He was in employment. He had intended to take a gap year in Australia to work as a junior housemaster in a school and to travel. He was said to have been drunk at the time of the incidents and to be ashamed and mortified at his own conduct. Since the date of the offence, he had avoided going out or socialising with the rugby team for whom he played, and he had been unable to continue his involvement with youth training.

The summary sheriff who sentenced the appellant declined to adjourn for the purposes of obtaining a justice social work report with a view to considering the imposition of a community payback order. He noted that the imposition of such an order would limit the notification period to the same period as that of the supervision and indicated that he would be reluctant to accept such a recommendation without being satisfied that it was not merely being used as a device to minimise the notification period which would otherwise be imposed.

At the appeal hearing, the court was provided with a report assessing the appellant as presenting a low risk of sexual reoffending using one measure of assessment, but a high risk according to another. The author described the appellant as remorseful and as having an awareness of the impact of his actions; the author attributed the appellant’s offending to a lack of maturity and drunkenness and noted he was willing to engage in a period of supervision to address his offending.

Clear focus for supervision

Delivering the opinion of the court, Sheriff Principal Murphy said of the sentencing process in such cases: “In Cooper v Shanks (2017), this court stated that sentencing for sexual offences is a holistic exercise in which the period and consequences of the notification requirements are relevant considerations in the sentencing exercise and should be taken into account when selecting the appropriate sentence. The court must weigh the effect of both the sentence and the registration requirement upon the offender and must also take account of the level of protection which is required for the public.”

He continued: “In the present case, the appellant is a first offender who was aged 18 at the time of the offence. He had repeatedly committed a sexual offence while significantly under the influence of alcohol. In these circumstances, the level of risk which he presented to the public could not properly be assessed without obtaining a justice social work report, nor could the factors referred to in Cooper be weighed without the further information which such a report would be likely to provide. The summary sheriff ought to have ordered a report.”

Considering the benefits of making a supervision order, Sheriff Principal Murphy said: “[The appellant] was identified as a hazardous drinker who would benefit from alcohol education. It was considered that he may benefit from a programme of work focussing on healthy intimate relationships and alcohol education. Such work could be undertaken with him in the course of a supervision requirement within a CPO.”

He concluded: “In our view, there was a clear focus for supervision which would address both the appellant’s alcohol use and the risk of him committing further sexual offences. The notification period would reflect the period of supervision. The imposition of a fine would automatically lead to the requirement to register as a sex offender for a five-year period which is neither fair nor proportionate and is also unnecessary for the purposes of public protection. A fine would not address the risk of sexual recidivism nor the appellant’s alcohol misuse.”

The court therefore quashed the fine imposed by the summary sheriff and imposed a community payback order with a supervision requirement of six months.