Full judgment transcript BAILII · Verbatim mirror
Read full delivered by LORD BECKETT, the LORD JUSTICE CLERK
in
CROWN APPEAL AGAINST SENTENCE
by
HIS MAJESTY'S ADVOCATE
Appellant
against
CM
Respondent
Appellant: Edwards KC, AD; the Crown Agent
Respondent: Mackintosh KC, Simpson; Patterson Bell, Solicitors
________________________
30 January 2026
Introduction
[1]
The Crown appeals against sentence on two grounds following a jury at Perth Sheriff
Court convicting the respondent of charges 1, 2, 7 and 8 on the indictment, on 21 August
2025, and the sheriff passing sentence on 2 October 2025. First, that the sentence imposed on
2
charge 2, imprisonment for 3 years, was unduly lenient and, secondly, in declining to make
a sexual harm prevention order on charges 7 and 8, the sheriff erred and, by failing
adequately to protect the public, passed an unduly lenient sentence.
[2]
The charges were these:
"(001) on various occasions between 25th October 1982 and 21st January 1993, both
dates inclusive at [various addresses in Dundee] you [CM] did assault your
daughter, [AA when she was aged between 5 and 15]... and did repeatedly slap or
punch her on the head and body, kick her on the body and pull her by the hair all to
her injury;
(002) on various occasions between 25th October 1984 and 24th October 1988, both
dates inclusive at [at two addresses in Dundee] you [CM] did use lewd, indecent and
libidinous practices and behaviour towards your daughter, [AA when she was aged
between 7 and 10] ... and did penetrate her vagina with your fingers and her anus
with clothes pegs or similar objects, to her injury, utter sexual remarks to her, touch
her on the body and vagina, over and under her clothing, masturbate your penis in
her presence (sic);
(007) on various occasions between 1st January 2022 and 5th August 2022, both dates
inclusive, at [addresses in Arbroath] you [CM], did sexually assault [BB when she
was aged 13 and 14] ... in that you did touch her on the thigh and buttocks over her
clothing and throw pieces of paper at her chest;
CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009;
(008) on 4th August 2022 at [an address in Aberdeenshire] you [CM], a person who
had attained the age of 16 years, did intentionally and for the purposes of obtaining
sexual gratification or of humiliating, distressing or alarming [BB then aged 14] ..., a
child who had attained the age of 13 years but had not attained the age of 16 years,
send a written sexual communication to her in that you did send her messages via
social media requesting that she send you nude images and utter inappropriate
remarks to her;
CONTRARY to Section 34(1) of the Sexual Offences (Scotland) Act 2009."
[3]
The sheriff sentenced the respondent to the following periods of imprisonment:
�
12 months on charge 1
�
36 months on charge 2
�
4 months on charge 7 and
�
2 months on charge 8.
3
The sentences on charges 1 and 2 were concurrent with each other. Those on charges 7 and
8 were also concurrent with each other but consecutive to the sentence on charge 2.
Accordingly, the respondent's total sentence was imprisonment for 40 months.
Background
[4]
The complainer on charges 1 and 2 lived with her father, the respondent, and her
mother until she was 12, when she was taken into care. She had a younger brother and
sister. The family lived at various addresses in Dundee. Her parents drank heavily,
prompting social work involvement with the family. A stage was reached when the
complainer was at residential school through the week, returning home at the weekend. She
complained to the police in 2021.
[5]
On charge 1, the complainer said that the respondent smacked and kicked her from
when she was 5 or 6 years old and would sometimes punch her. He would kick her on the
legs and bottom, slap her on the face and smack her on the bottom. When she was 14 or
15 he pulled her hair so hard that she lost some hair. She reported it at school the following
day and did not return home again. The sentence on charge 1 is not subject to appeal.
The circumstances of the offences under appeal
Charge 2
[6]
When she was 7 or 8 and her mother was out working, the respondent touched and
rubbed AA's chest and vagina over her clothing. He told her it was their secret, and she
must not tell her mother. This pattern was repeated and could go on for 10-30 minutes. He
then began to do it when she was naked, probably when she was 9 or 10. He would remove
her clothes himself or tell her to remove them. He would then touch her chest, vagina and
4
anal passage with his fingers. Sometimes he would insert his fingers into her vagina. He
also inserted clothes pegs into her anus for 5-10 minutes each time and she would feel
thrusting and twisting, causing her pain. She said it was very sore and he told her she had
to be brave. He would be wearing clothes but touching his genitals. She now understands
he was masturbating. He told her that girls needed sex, it was a part of life that he had to
teach her. She must not tell her mother or social workers as it was "our little secret." It only
happened when her mother was out at work, about once a week, and sometimes more
frequently.
[7]
It caused her difficulty with her bowels. She would lose control and soil herself most
nights. She would smear her faeces on the walls or hide it under her bed. It stopped when
she was ten and a half or 11 years old when she moved school, on 24 October 1988, after
which there were no more entries about soiling in social work records. Medical
examinations in May and June 1988 revealed injuries that could be explained by playing,
and her hyperactivity, and it was not clear that she had been abused, although physical
abuse was probable.
Charges 7 and 8
[8]
BB was a friend of the respondent's granddaughter, CC. The timing of charge 7
began shortly before BB turned 14, and continued for a further 7 months, and the conduct in
charge 8 occurred at the end of that period. On one occasion BB visited CC at an address in
Arbroath. The respondent was there and he threw paper down the tight vest top she was
wearing. It went down her cleavage and the respondent immediately left to go to the toilet.
On another occasion, at the same house, the respondent sat beside her and grabbed her
thigh. Later that day, he grabbed her bottom twice, once while pretending to be playing a
5
game. A few days later, the respondent messaged BB and asked her to send him pictures of
herself naked, asking her if she knew what a "birthday suit" was. BB asked him why he was
asking her this and he told her to "try and guess". When she asked him whether he meant
that he wanted to see her "in nothing," he replied, "What do you think?" followed by "Yea."
She asked him whether he was joking. He replied that he was not. When BB prevaricated,
to resist his request, he persisted by asking her whether she would, "do it just top half." In a
later exchange, BB confronted the respondent by saying "I am 14 u are 69 I think it is very
wrong u are asking me for nudes." When she asked him why he asked her for nude
photographs he replied, "just silliness."
Victim information
[9]
AA explained that she suffers from ongoing bowel problems, including diverticulitis
and rectal bleeding. She suffers from anorexia and has used drugs and alcohol to cope. She
has taken an overdose on several occasions in attempting to commit suicide. She had a heart
attack immediately after giving evidence at trial and was admitted to hospital for four days.
She has PTSD with regular nightmares such that she has been unable to work for almost
30 years. Her difficulties have had a profound impact on her relationship with her husband
and child. She could not stay where she grew up and her move to another part of Scotland
left her isolated.
[10]
BB was 16 when she prepared her victim statement. She is less happy than she used
to be and has struggled to communicate her feelings. She feels uncomfortable being touched
or hugged even by female friends. She suffers from flashbacks and nightmares and has had
counselling for two years.
6
Previous convictions
[11]
The respondent has seven convictions on summary complaint between 2004 and
2013. Five relate to minor motoring offences. He has two convictions for assault, both in the
domestic context. He was fined in 2010 and made subject to probation for 3 years in 2011.
Justice social work report and risk assessment
[12]
The author assessed the respondent as posing a below-average risk of sexual
recidivism and a medium risk of general reoffending. He continued to deny the offending
and blamed others for his actions. Whilst he admitted the conduct in charge 7, he denied
any sexual intent. He denied that he asked BB for nude photographs, maintaining that
reference to a "birthday suit" was part of a joke that the complainer did not understand.
The respondent did not disclose any significant negative experiences in his personal life. He
acknowledged that the environment in which he brought up his children was sometimes
chaotic, attributing it to his wife's use of alcohol. The author noted that the respondent
posed a significant risk to children.
[13]
A Tay Project assessment was that the respondent's risk of sexual and violent
recidivism was below average. He was assessed as suitable for the Moving Forward
2 Change programme, a behavioural change programme intended to reduce the risk of re-
offending by men convicted of sexual offences.
Plea in mitigation
[14]
The respondent was 73 when sentence was passed, single, retired and reliant on state
benefits (although we note from the JSWR that he is in receipt of both a private and state
pension). The lack of insight referred to in the reports was due to a lack of education. The
7
respondent had found probation helpful and was willing to undertake work to identify and
manage inappropriate behaviours.
Reasons for the sentence imposed
[15]
The sheriff considered that only a prison sentence was appropriate, given the nature
and severity of charge 2. It was not open to her to impose an extended sentence for
offending occurring before 30 September 1998: when section 86(1) of the Crime and Disorder
Act 1998, amending the Criminal Procedure (Scotland) Act 1995 by introducing section
210A, came into force. The sheriff considered the reasoning and conclusions of this court in
bearing some similarities but occurring over a period more than twice as long as that in
charge 2. Given the shorter period and the respondent's age, she considered the sentence
she imposed on charge 2 appropriate.
[16]
The prosecutor invited the sheriff to make a sexual harm prevention order with
conditions prohibiting the respondent from: (i) attempting to have contact with any child
under the age of 18 unless supervised by an adult over the age of 21, and (ii) undertaking or
applying for any work or activity, whether paid or voluntary, that was likely to bring him
into contact with a child or young person under the age of 18 years without prior written
permission from the relevant police public protection unit. The sheriff was not satisfied that
this was necessary. On release from prison for a sexual offence, the respondent would be
subject to licence conditions capable of protecting the public from any risk he posed. The
indication in the reports was that he could be managed in the community.
8
Note of appeal
[17]
The sentence imposed on charge 2 was unduly lenient because the sentence did not
sufficiently achieve the sentencing purposes of expressing disapproval of sexual offences
involving young children, particularly those involving breach of parental trust. The sheriff
failed to give sufficient weight to AA's age at the time of the offence, the significant physical
and psychological harm he caused her, the breach of parental trust and the inherent
seriousness of the offence. There was a considerable difference between the sentence
imposed and the sentence likely to have been imposed in England and Wales under
reference to the Sentencing Guidelines for England and Wales for section 6 of the Sexual
Offences Act 2003, assault of a child under 13 by penetration of the vagina or anus, which
would attract a sentence in the range of 13 to 19 years with a starting point of 16 years'
imprisonment. The sentence imposed did not address the significant risk of harm posed by
the respondent. The sheriff placed undue weight on the assessments in the reports, failed to
consider the whole scope of the respondent's offending and failed to protect the public,
notably children, from the risk he presents. The sheriff erred in failing to impose an SHPO.
Submissions
Crown
[18]
The sentence on charge 2, and the failure to impose an SHPO, fell outside the range
of sentences that the sheriff, applying her mind to all relevant factors, could reasonably have
considered appropriate: HM Advocate v Bell 1995 SCCR 244 at 250D.
[19]
The sheriff did not reflect the gravity of the respondent's culpability in the sentence
imposed. There was clear evidence of planning, premeditation and grooming. His conduct
took place in private and escalated from touching and rubbing to digital penetration of AA's
9
vagina and "thrusting" or "twisting" clothes pegs into her anus, causing extreme pain. He
did this, repeatedly, for his own deviant sexual gratification. He knew the extent of AA's
pain and discomfort but, instead of stopping, he told her to "be brave." He told her not to
tell anyone and that it was their "little secret".
[20]
The harm he caused AA was at the highest level, both psychologically and
physically: HM Advocate v RB [2025] HCJAC 7 , 2025 JC 302 at [24]. The complainer suffered from rectal bleeding and excessive soiling, conditions known to the respondent at the time
of the offending. The psychological harm caused has continued through AA's adult life, as
detailed in her victim statement.
[21]
The respondent's actions were a breach of the sacrosanct bond of trust between
parent and child: RB at para 22. The court had previously held that a significant prison
sentence, at least in the region of 8-10 years, may be appropriate where an offence involved
the rape of a complainer, or other penetrative sexual abuse of several complainers, in respect
of whom the offender was in a position of trust: HM Advocate v Collins [2016] HCJAC 102 , 2017 JC 99 . Whilst the sheriff clearly identified breach of trust in referring to B(C), she erred by placing too little weight on it. The sheriff should have distinguished this case, given
penetration by an object. The respondent specifically targeted AA at times when he was her
primary carer, her mother being out at work. His offending was further aggravated by the
repetition and persistence of his conduct over four years. Repetition usually makes a crime
more serious, certainly in cases of sexual offending: HM Advocate v MacGregor [2025] HCJAC 28 ; 2025 JC 358 at [32]; HM Advocate v JT 2005 1 JC 86 at [45]; HM Advocate v Cooperwhite
10
[22]
The community strongly disapproves of sexual offending against children. It is
There were few, if any, mitigating factors.
[23]
On a cross-check against the English and Welsh Guidelines for s 6 of the 2003 Act,
the offence might fall within harm category 1 and culpability category 1. This would result
in a starting point of 16 years' imprisonment, within a range of 13-19 years. There was a
major disparity between the sentence selected by the sheriff and the range in the English and
Welsh Guidelines. Such a major disparity could confirm that the sentence was unduly
[2024] HCJAC 36 , 2025 JC 31 at [20]. Even if the range was so far removed from sentencing practice in Scotland that it should be disregarded, this court should note that in B(C) , the
court had examined the English guideline for a different offence, section 25 of the 2003 Act.
On reflection, it would be appropriate to evaluate the respondent's sentence against the
section 25 guideline.
Sexual harm prevention order
[24]
It was open to the court to impose an SHPO where it was satisfied that it was
necessary to make an order for the purpose of protecting the public, or any particular
members of the public, from sexual harm: Abusive Behaviour and Sexual Harm (Scotland)
Act 2016, s 11(4)(a). It was evident that the public, and in particular children, required
protection from the respondent. There were separate courses of conduct against two
different complainers, separated by a generation. Each course of conduct only ceased when
the respondent no longer had the opportunity to offend: in AA's case because she was
removed from his care and for BB when she disclosed his offending. The author of the
11
JSWR considered that the respondent posed a significant risk to children and recommended
numerous restrictions to ensure he would not have contact with any persons under the age
of 18 years. Ordinary licence conditions were not sufficient to protect the public from the
risk posed by the respondent. Where an extended sentence was not competent on charge 2,
the sheriff should have made an SHPO to protect children from sexual harm. The test was
plainly met.
[25]
Having considered the respondent's written submissions, and that he will be subject
to notification requirements indefinitely and that details of his convictions were referred to
the Scottish Ministers under the Protection of Vulnerable Groups (Scotland) Act 2007 for
consideration of inclusion of his name in the list of persons unsuitable to work with
children, and his age and status as a pensioner, the Crown was content that only one
restriction was necessary. It should also be qualified for the reasons founded on by the
respondent.
Respondent
[26]
The sentence selected by the sheriff was not unduly lenient. The sheriff had regard
to relevant and recent sentencing decisions in similar cases. The facts and circumstances of
B(C) were broadly analogous to this case. Both cases were prosecuted in the Sheriff Court
and involved the breach of trust by a father towards his daughter. The complainers in each
case were under 13. In B(C), the abuse continued for much longer than the respondent's
abuse of AA. In both cases the offenders impressed upon the complainers the importance of
not disclosing what was taking place. The sheriff correctly adjusted the sentence imposed in
B(C) to reflect the circumstances of the present case. She correctly identified that the abuse
had not been as prolonged as that in B(C) and took account of the respondent's advanced
12
age. The sheriff could not be faulted for selecting her sentence, given the Scottish
authorities. Whilst the English and Welsh Guidelines could be used as a broad cross-check,
they were not to be applied in a rigid or mechanistic fashion: Sutherland v HM Advocate
Guideline for s 25 of the 2003 Act, which the sheriff took account of. The circumstances in
RB and Collins , involving rape, were substantially worse than those of the respondent's case.
That the Crown chose to prosecute the respondent in the Sheriff Court was a consideration
that could not be overlooked: HM Advocate v Stalker 2003 SCCR 734 at [13].
[27]
The sheriff was correct to refuse the Crown's motion for an SHPO to be imposed in
the terms presented to her. The first prohibition, of the respondent having contact or
attempting to have contact with any child under the age of 18 years unless supervised by an
adult over the age of 21, was too broad. It would have prevented the respondent from using
shops and public transport where staff and customers may be under the age of 18: R v Smith
of the European Convention on Human Rights and Fundamental Freedoms by being
sufficiently precise to enable the offender to understand its scope and foresee the
consequences of his actions so that he could regulate his conduct without breaking the law:
prohibition of any contact in any form with a child under the age of 18 years would have cut
the respondent off from society and everyday living. The second prohibition against
undertaking or applying for any work or activity likely to bring him into contact with a child
without prior written permission, was unnecessary. The respondent was 73 years of age
and in receipt of a private pension. There was no prospect that he would seek further
employment.
13
[28]
The respondent accepted that if a modification were made to prohibit contact with
children under 16 years, and it included an exempting qualification of the kind identified in
Smith , for inadvertent contact with children, then it would be appropriate for this court to
make an SHPO for a period of 10 years in light of the respondent's conduct in charges 7 and
8. Senior counsel accepted the court's provisional view that the terms of any order should
properly address the specific risk of grooming via electronic communications.
Decision
[29]
The circumstances and consequences of charge 2 were appalling and the sentence
imposed appears conspicuously lenient. Nevertheless, it does not automatically follow that
the sentence passed on that charge was unduly lenient. Parties agreed that we should apply
the approach of the Lord Justice General (Hope) in Bell . In that case, the court was
considering the Criminal Procedure (Scotland) Act 1975 section 228A, introduced from 1
October 1993 by the Prisoners and Criminal Proceedings (Scotland) Act 1993 s 42. This
provision, for the first time, allowed the Lord Advocate to appeal against a sentence on the
ground that it was unduly lenient. The Lord Justice General explained:
"It is clear that a person is not to be subjected to the risk of an increase in sentence
just because the appeal court considers that it would have passed a more severe
sentence than that which was passed at first instance. The sentence must be seen to
be unduly lenient. This means that it must fall outside the range of sentences which
the judge at first instance, applying his mind to all the relevant factors, could
reasonably have considered appropriate. Weight must always be given to the views
of the trial judge, especially in a case which has gone to trial and the trial judge has
had the advantage of seeing and hearing all the evidence. There may also be cases
where, in the particular circumstances, a lenient sentence is entirely appropriate. It is
only if it can properly be said to be unduly lenient that the appeal court is entitled to
interfere with it at the request of the Lord Advocate."
[30]
In considering whether to invoke a jurisdiction introduced for the first time in 1993,
and which continues to allow the Crown direct access to an appeal hearing without
14
requiring leave to appeal, the Crown should exercise the highest standards of care in
selecting cases to be brought before this court: HM Advocate v McKay 1996 JC 110, opinion of
the court delivered by the Lord Justice General (Hope). The Crown should take equal care
in formulating grounds of appeal: HM Advocate v Bennett 1997 JC 49, McKay .
[31]
In Scotland, unless the court has approved a Scottish Sentencing Council offence
guideline, then the primary source of guidance for a sentencer is Scottish precedent in
reported appeal cases; Collins at para 30. Even then, the court must always be astute to
recognise that the circumstances of different cases are never identical and that considerable
care and judgement is required in evaluating potential precedents. In some cases,
particularly where there is a dearth of Scottish authority, the English guidelines may prove
useful. Such consideration should always be very carefully undertaken. If they are
considered at all, English guidelines should generally provide no more than a cross-check on
what the judge has provisionally considered to be the appropriate sentence. They may be
most useful where the offence is regulated by a UK statute and has a common maximum
sentence. They should not be applied in a rigid or mechanistic fashion, given the differences
in sentencing practices and regimes: Sutherland, opinion of the court delivered by the Lord
Justice Clerk (Carloway) at para 20.
[32]
There is an obvious difference in this case. Both the common law crime constituting
charge 2, and its contemporary equivalent, sexual assault by penetration of a young child
(under 13 years), section 19 of the Sexual Offences (Scotland) Act 2009, have the same
potential maximum of a life sentence. In England the offences under ss 6 and 25 of the 2003
Act carry, respectively, maximum sentences of life imprisonment and 14 years'
imprisonment (the latter for an offender of 18 years or over). The offence under s 25 (sexual
activity with a family member constituted by any kind of sexual touching) is not found in
15
the same terms in Scots law, but as the Advocate Depute came to recognise, the range of
sentences for s 25 are much closer to Scottish sentencing practice than those for a 2003 Act
section 6 offence (assault of a child under 13 years by penetration).
[33]
Whilst the Crown identified certain precedents, including RB, Collins and JM v HM
Advocate [2019] HCJAC 9 , the Advocate Depute acknowledged that the circumstances in those cases were rather different. In Collins , the respondent worked in a young person's unit
and was convicted of repeatedly and forcefully raping one girl and in the case of each of
three other complainers, an instance of indecent assault by kissing and sexually touching.
His offending extended over a period of 11 years. It appears that the girls were aged
between 12 and 16 years. In RB , the respondent, during contact, violently raped his 10 year-
old daughter, who forcefully resisted and protested. He had locked her in the house to
prevent her from escaping. On another occasion, when he had contact with his son, aged 4
or 5 years, and while they were out alone for a walk, he told the boy to bend down, lower
his underwear and the respondent pulled down his own clothing and exposed his penis.
The child panicked, thinking his father was going to urinate on him and kill him, and
quickly pulled up his clothing, bringing the incident to an end. In JM , the appellant, whose
sentence was reduced on appeal from 10 to 6 years' imprisonment, had sexually abused
three daughters some 30 years previously between 1976 and 1990. His conduct extended for
10 years in one case against a daughter from the age of 4 years; for 6 years for a second
daughter from the age of 8 years; and for 6 or 7 years for a third daughter from the age of 5
years. His conduct mostly involved rubbing and touching their vaginas, pressing his penis
against their buttocks, ejaculating, masturbating, inducing them to masturbate him and, on
one occasion digitally penetrating the second daughter's vagina. The appeal court noted the
16
respondent's exemplary conduct in the intervening years, his poor health and that there was
one penetrative act. He had a new and supportive family.
[34]
We reject the respondent's suggestion that the sheriff was constrained, to any extent,
by the maximum sentence available to her being imprisonment for 5 years. If she had
considered that justice required a greater sentence, the appropriate course would have been
to remit to the High Court of Justiciary: Criminal Procedure (Scotland) Act section 195. The
Crown's choice of indicting in the Sheriff Court does not create a presumption that a
sentence of imprisonment for 5 years or less is appropriate: Stalker ; McGhee v HM Advocate
Justice Clerk (Gill) explained, at para 13:
"...in every case the decisive consideration should be the level of sentence that the
sheriff considers to be appropriate and not the level that the Crown's choice of forum
may be thought to indicate. We do not agree that a remit would be appropriate only
where unexpected evidence takes the disposal beyond the sheriff's powers. A remit
will be appropriate if the sheriff considers that the circumstances require it,
regardless of the view that the Crown has taken. In our view, a sentence within
sheriff court limits was not an option in this case..."
[35]
The opinion of the court in B(C) was relevant as the sheriff correctly recognised. It
remains relevant in this appeal given this court's task as explained by the Lord Justice
General in Bell . In B(C), the court examined, closely, all relevant circumstances before
reaching a fully reasoned decision on increasing a sentence of imprisonment from 2 years to
4 years. We shall examine the court's opinion in some detail.
[36]
The respondent B, was indicted on two charges of lewd, indecent, and
libidinous practices and behaviour against his own daughters during the 1980s
and 1990s. After their parents separated, the two complainers lived with the
respondent. There was regular sexual abuse including digital penetration of the vaginas of
both complainers. The abuse of the first complainer had started when she was 2 or 3 years
17
old and endured over 10 years. He also pinned her down, lay in bed naked with her and
caused her to touch his erect penis. On one occasion, in anger, he roughly penetrated her
vagina with his fingers causing considerable pain. Charge 2 included lying, both naked, on
a mattress with the second complainer and penetrating her vagina with his fingers. These
occurrences were less frequent. He groomed his daughters and normalised his abusive
behaviour. He repeatedly told them they could be taken away if they told people about
what was happening at home. His sexual conduct sometimes occurred with both girls at
once so that each witnessed the other being subjected to what they later came to understand
was sexual abuse.
[37]
The complainer on charge 1 looked back and could see how her whole life had been
affected. She had difficulties in maintaining relationships and sustaining employment. She
suffered nightmares, insomnia, flashbacks, mood swings and suicidal ideation. She had
required counselling and suffered two extreme episodes of mental health difficulties that
necessitated the support and intensive care of a mental health crisis team.
[38]
The sheriff took account of positive references, the absence of any meaningful
convictions, the passage of time between the commission of the crimes and sentencing and
the respondent's work history. The respondent suffered from M�ni�re's disease, anaemia,
high blood pressure, heart disease, diverticular disease and issues affecting his digestive
tract. The sheriff imposed concurrent sentences of imprisonment: two years on charge 1 and
one year on charge 2. The Crown restricted its challenge to charge 1 and, with reference to
the Sentencing Council for England and Wales guideline (Sexual Activity with a Child Family
Member/Inciting a Child Family Member to Engage in Sexual Activity), suggested a starting point
of 6 years in a range of 4 to 10 years.
18
[39]
In evaluating the circumstances, the court noted that there was very high culpability
for such deliberate and planned sexual abuse committed by a mature adult. The harm
caused was enormous. The respondent's offending was sustained and repeated and had
immense psychological impact. Other particularly aggravating features were the
vulnerability of a child in his sole care whom he specifically targeted. It was an egregious
breach of the very high degree of trust placed in a parent. There was grooming,
psychological manipulation and threats about the consequences of the child reporting what
he was doing. The respondent had sought to normalise his behaviour as if it was a game.
The commission of such offending in the presence of another child was a further
aggravation. There was no convincing evidence of remorse, regret, insight or victim
empathy. Whilst the respondent's good character was mitigating, it was of very limited
weight. He evaded detection and enjoyed life as if a respectable citizen for many years.
That he was now old, and had health difficulties, carried little weight. He would receive all
necessary medical care whilst in prison. The court concluded that the sheriff had
underestimated the gravity of the offence, the sentence was unduly lenient and imposed
instead a sentence of 4 years' imprisonment.
[40]
Returning to the present case, we recognise the significance of the many serious and
aggravating features we have set out above. Both culpability and harm were very high in
this case, the harm perhaps being even worse than in B(C) . The breach of trust was
egregious, and the respondent persisted in his cruel and perverted conduct over almost four
years. The complainer was caused to understand that she must remain silent. He was
violent towards her over the period of his offending, and for years beyond, but charge 1 is
not the direct focus of this appeal.
19
[41]
If the Crown is to persuade us that the test set out in Bell is met for ground 1,
challenging the prison term on charge 2, we would need to find that the sheriff imposed a
sentence below the range a sheriff could reasonably have considered appropriate, applying
her mind to all relevant features of the case. It is difficult to identify a range but the reported
case with most similarity appears to be B(C) where a sentence of 4 years' imprisonment was
imposed for offending that endured for 10 years. Whilst some features are worse in this
case, notably the use of objects to penetrate and the physical and psychological
consequences, others were worse in B(C) . These include: notably, that offending against the
complainer on the charge subject to appeal began when she was 2 or 3 years of age; the
10-year period of the libel; the commission of such conduct in the presence of another child;
and the commission of similar conduct against another daughter during an overlapping
period. The sentence of 4 months' imprisonment imposed on charge 7 being consecutive
brings the respective sentences closer together.
[42]
Despite our view that the sentence on charge 2 was lenient, the sentence imposed in
B(C) prevents us from concluding that it fell below the range reasonably open to the sheriff
who understood the circumstances and considered what occurred on appeal in B(C) .
Accordingly, we cannot find that the sentence on charge 2 was unduly lenient as proposed
in the first ground of appeal and we refuse it.
[43]
Turning to the second ground, senior counsel for the respondent conceded in the
hearing that an SHPO for a duration of 10 years was appropriate if it referred to children
under 16 years of age and contained a refinement such as that proposed by the Court of
Appeal in Smith.
[44]
We note that the respondent was 70 years old when he committed the crimes in
charges 7 and 8, coinciding with our judicial experience that some male sex offenders
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continue to offend in their advanced years. Charge 7 was a course of sexual assault and
grooming designed to enable him to sexually abuse BB more seriously. Charge 8 was a
further development in his campaign, albeit unsuccessful. Given his sexual offending
against one child over several years in the 1980s, and his further grooming and sexual
offending when he had access to another child in 2022, a girl of 13 and 14 years, we consider
that the respondent has a propensity to abuse children sexually and that it remains active. It
is necessary to protect the public, notably children and particularly adolescent and younger
girls, from the considerable risk of sexual harm the respondent presents. The form of that
harm is both contact sexual abuse and non-contact, sexual, electronic communications.
[45]
Having invited and considered written submissions from parties on the terms of our
proposed order, and still being persuaded that the order is necessary, we shall make a
sexual harm prevention order under the Abusive Behaviour and Sexual Harm (Scotland) Act
2016 section 11(3)(a). We:
i)
prohibit the respondent from having or attempting to have any contact or
communication of any kind with any person under the age of 16 years save
for incidental or unavoidable contact, unless supervised by an adult over the
age of 18 and such adult is an adult who has official caring or parental
responsibilities for the child;
ii)
require the respondent to inform an officer of the Offender Management Unit
responsible for managing him in terms of the Sexual Offences Act 2003, of any
electronic devices he owns, uses or possesses capable of accessing the internet
or communicating electronic messages;
iii)
require the respondent to permit and facilitate the inspection of any such
devices upon request by a police officer, including but not limited to, the
provision of any user-names, passwords or other information necessary to
enable them to do so;
iv)
prohibit the respondent from deleting the internet browsing history of, or
other records of calls, texts, messages or emails or any other communications
on any such devices owned, possessed or used by him without the
permission of an officer of the Offender Management Unit responsible for
managing him in terms of the Sexual Offences Act 2003; and
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v)
prohibit the respondent from downloading, installing, activating or using any
software or service designed to, or which has the effect of (a) preventing logs
of internet access, web pages, records of calls, text messages, emails or other
communication being preserved; (b) deleting the history of access to internet
pages or other records of calls, texts messages, emails or other
communications or (c) otherwise concealing specific internet web pages
access, other records of calls, text messages, emails or other communications
or (d) otherwise concealing specific internet web pages access, other records
of calls, text messages, emails, or other communication on such devices that
are owned, possessed or used by him;
vi)
said order is for a period of 10 years."