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Project attendance not proper use of extended sentence: appeal court

19 January 2017

Attendance at a project designed to reduce the risk of reoffending is not a legitimate use of an extended sentence, but consideration should be given to enabling comparable disposals in serious cases involving indecent images of children, the Criminal Appeal Court has stated.

Chaired by Lord Justice General Carloway, the court decided three appeals by men convicted of making, or making and possessing, significant quantities of such images, many of them at level A, the most serious level. In each case the sheriff imposed an extended sentence of more than three years, with custodial elements of between eight and 16 months, all designed to permit attendance, as part of extended sentence licence conditions, at the Clyde Quay Project, designed for such offenders. The court quashed the extended sentence element of each disposal but affirmed the custodial element.

Appellants Kenneth Wood and Thomas Tennant were both aged 65; Wood was a first offender. Each was a carer for a partner or elderly parent. Appellant Darryl McLean was aged 30, had a non-analogous criminal record, and lived with a girlfriend who had a 10 year old daughter. Each argued that an extended sentence was excessive, and further that a custodial sentence was not necessary having regard to their circumstances and the risk assessments submitted.

Lord Carloway, who sat with Lord Bracadale and Lord Malcolm, said the sheriffs' approach had been understandable in that, "whereas a period in custody was the only appropriate sentence in terms of the guidelines in HM Advocate v Graham 2011 JC 1, a custodial term would not be sufficient to enable the offender to attend the Clyde Quay Project which was designed to reduce the risk of reoffending".

However, he continued, that was not a legitimate use of an extended sentence. "Section 210 of the Criminal Procedure (Scotland) Act 1995 makes it clear that such a sentence is only to be imposed where the court is satisfied that the period for which the offender would otherwise be subject to a licence would 'not be adequate for the purpose of protecting the public from serious harm'. Although the sheriffs have attempted to justify the sentences in terms of the section, it is simply not possible to classify these appellants as posing a risk of 'serious harm' to the public were they to be released during the course of, or at the end of, the period of custody imposed.

"In order to reach a contrary conclusion, a somewhat convoluted course of reasoning would require to be adopted, whereby a connection would be established between accessing the pornographic images and the risk to those who might appear in similar images in the future. Such a connection does exist in general terms, but to classify it as involving a risk of 'serious harm' to the public in the sense intended in the legislation is an error". It followed that, in each appeal, the extended element of the sentences had to be quashed.

Regarding the custodial element, the guideline for England & Wales, to which regard was had, had changed since 2011 in that there was now a specific reference to the possibility of a community disposal aimed at rehabilitation as an alternative to a short or moderate sentence. But that was consistent with the previous position in Scotland, and having regard to the normal starting point for the possession of category A images, "In order to justify a community based disposal, there would require to be some particular circumstance, such as a relatively fleeting possession, or particularly compelling personal circumstances, such as extreme old age."

In cases such as these, the requirements of punishment, denunciation and general deterrence were "paramount”, and the appeals in these respect would be refused. Indeed, McLean's sentence might have been regarded as unduly lenient.

Pointing out that it was not currently an option to impose a custodial term combined with a community disposal, the court concluded: "The utility of using a deterrent custodial sentence combined with a period of extended supervision thereafter would, in cases such as those under consideration, seem clear, even if the current statutory tests for doing so are not met. This is a matter which the Scottish Government and/or the Scottish Sentencing Council may wish to consider in due course."

Click here to view the opinion of the court.

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