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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Crossley v. Her Majesty's Advocate [2003] ScotHC 64 (25 November 2003) URL: http://www.bailii.org/scot/cases/ScotHC/2003/64.html Cite as: [2003] ScotHC 64

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1. This is the appeal of Maurice Crossley who pled guilty at Glasgow Sheriff Court to an indictment under Section 76 of the Criminal Procedure (Scotland) Act 1995 which contained two charges of using lewd and libidinous and indecent practices.

2. The first charge involved a course of conduct over a period of seven months between January and July 2001 towards a male complainer who was 10 years old. The appellant regularly handled the complainer's private parts, masturbated him and induced him to handle and masturbate him to the emission of semen. The appellant also rubbed his body against the complainer's body and masturbated in his presence. The second charge involved a 7 year old male complainer and involved the appellant on several occasions between September 2001 and December 2001 handling and masturbating the complainer's naked private member and also masturbating to the emission of semen in his presence.

3. The information before the sheriff was to the effect that the 28 year old appellant, who had been convicted of two analogous offences at summary level in 1995, had targeted his victims by befriending their mothers who were both vulnerable single parents. The appellant acknowledged to the author of the social enquiry report that he still fantasised about male children and he admitted that, in relation to the offences before the Court, he had deliberately created situations where he was able to enact these fantasies. The sheriff also had before him a report from a social worker based at the Clyde Quay Project, a social work services project that provides group work programmes for sex offenders who are willing to address their offending behaviour. The author of that report found that the appellant was very open about his offending behaviour. He acknowledged to her that he had been sexually abusing young boys since he was aged 15, and indicated that he considered himself to be an expert in this behaviour since he had evaded being caught for so long. He described feelings of being in control and powerful when offending which he never felt at any other time. He also indicated that he considered himself to be a dangerous man who should be "locked up forever", and said that he was scared of creating more victims in the future. The author of that report assessed the appellant as posing a high risk of re-offending. She considered that post release supervision would be desirable, so that a risk management plan could be put into action and monitored.

4. In the light of the information before him, the sheriff, not surprisingly in our view, decided that his sentencing powers were inadequate to impose a sentence that would both constitute adequate punishment for these offences and protect the public from the high risk of future offending by the appellant. He therefore remitted the case to the High Court for sentence.

5. When the case called before Lady Smith she decided to obtain a report on the appellant from Dr Gary McPherson, a consultant forensic clinical psychologist based at the State Hospital in Carstairs. Dr McPherson reviewed the appellant's offending behaviour and carried out an assessment of the risk of sex offence recidivism using the structured clinical approach to risk assessment. He found that the appellant had a long standing deviant interest in homosexual activity with young males. The appellant told Dr McPherson that he was unable to suppress his sexual deviation or stop his offending. He also indicated that he abused amphetamines and ecstasy at the time of his offending to enhance his level of sexual arousal and disinhibit his behaviour. Dr McPherson formed the view that the appellant's sex offending had escalated during the course of the index offending and that he had groomed each victim. In his opinion, the appellant presented a high risk of future sexual offending; that level of risk may, however, be reduced if the appellant remains willing to discuss his own experiences of childhood sexual abuse. Dr McPherson recommended that the appellant be subject to an extended sentence to allow for his continuing supervision and clinical risk management in the community. In this regard, he pointed out that the imposition of restrictions in the community and long-term supervision are an effective and evidence based method of reducing the recidivism rates of sex offenders at high risk of re-offending.

6. The sentencing judge considered that it was imperative in the light of the information before her that all should be done that could be done to protect the public, particularly children, from being exposed to the appellant whilst he remained at his present level of risk of re-offending. She recognised that she could have imposed a determinate sentence and an extended sentence under and in terms of Section 210A of the Criminal Procedure (Scotland) Act 1995, but took the view that such a sentence would not have had the effect of giving any assurance that the appellant would not be released while still being at high risk of further sexual offending. That was because he would have to be released at the end of the custodial period of such a sentence irrespective of whether he had made any progress towards addressing his sexual deviance so as to reduce the risk factor to an acceptable level. In these circumstances, she did not consider that such a sentence was appropriate. The sentence imposed by the sentencing judge was a discretionary life sentence which she considered was appropriate to seek to ensure that the appellant would not be released whilst still at his present level of risk. She fixed the punishment part of that sentence at a period of four and a half years.

7. The submission to this Court was that the imposition of a discretionary life sentence was excessive and inappropriate in the circumstances of this case. The appellant had tendered a guilty plea at the earliest possible opportunity after making full admissions to the police at interview. The reports before the Court indicated that the appellant was beginning to show some insight into his offending. None of these reports suggested that a life sentence would be an appropriate disposal. The three reports all focused on the need for post release supervision, rather than attempting to ensure that the appellant is not released until he can no longer be regarded as a risk to the public. If an extended sentence could provide the appropriate level of security, then that should be preferred to a life sentence. The sentencing judge went too far in concluding that the only course of action open to her in this case was the imposition of a life sentence.

8. As this Court pointed out in the case of Kelly v HMA 2000 S.C.C.R. 815, Parliament, by inserting Section 210A into the 1995 Act, has provided the Courts with a new type of sentence with a view to providing additional protection for members of the public from offenders who have committed violent or sexual offences. Such extended sentences comprise two elements, a custodial term and the extension period. Once the prisoner has served the appropriate period of the custodial term and is released into the community he does not remain subject to a licence merely during the balance of the custodial term; rather, he remains subject to a licence until the end of the extension period. Where this type of finite sentence can provide the necessary protection, Parliament's intention must be assumed to have been that a finite sentence should be preferred to an indefinite life sentence.

9. Bearing in mind the way such sentences operate and the focus in the various reports on the need for the post-release supervision of the appellant, it appears to us that an extended sentence would be an appropriate disposal in the present case. It follows that we consider that the imposition of a life sentence can properly be regarded as excessive.

10. So far as the custodial term of the sentence is concerned, we have taken into account the appellant's plea of guilty at an early stage, the fact that there was no penetration of either of the victims, and the fact that the abuse was not accompanied by violence. In these circumstances we consider that an appropriate custodial term is one of five years imprisonment.

11. It is, of course, impossible to know at this stage whether and to what extent the appellant will co-operate with any sex offender programme offered to him whilst he is in custody; likewise, it is impossible to predict the effectiveness of any such programme. In view of this uncertainty, we consider that we should select the maximum extension period of ten years with a view to providing a lengthy period of additional protection for the public.

12. In the result we shall allow the appeal, quash the sentence of life imprisonment and substitute an extended sentence. In doing so, we shall impose a custodial term of five years and an extension period of ten years.