VE, APPEAL AGAINST SENTENCE BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC

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Appellant: CM Mitchell; Paterson Bell Solicitors for Amer Anwar, Glasgow

[1] The appellant was found guilty after trial at the High Court of Justiciary at Glasgow

on 23 June 2017 of two offences in terms of the Sexual Offences (Scotland) Act 2009.

Charge 1 was a charge of repeated statutory rape of a girl aged 5 and 6 over an 18 month

period contrary to section 18 of that Act. Charge 2 was a charge of a sexual assault by

touching a girl aged 7 and 8 over the same period contrary to section 20 of that Act. The

complainers were sisters. The appellant who has lived in Scotland since 2012 was aged 14 at

the date of the offences and 15 at the date of conviction. After preparation of background

reports, on 2 August 2017 the appellant was sentenced to 6 years detention in respect of

charge 1 and 1 year’s detention in respect of charge 2, these sentences to be concurrent with

[2] It is accepted on behalf of the appellant that the offences were sufficiently serious

that only a custodial sentence was appropriate, but it was argued on behalf of the appellant

that a total of 6 years detention was excessive. There were two particular arguments

advanced in support of this submission. First, that the judge erred in stating that the

offences were carried out after a “level of planning had taken place in gaining the trust of

the victims, isolating them within his home and perpetrating the offences while in a positon

of trust”. In reality, Ms Mitchell for the appellant argued, the appellant was a 14 year old

boy whose sister was friendly with the two complainers who came to play in their house.

There was nothing to support a suggestion of a significant degree of planning and this was

not a situation akin to that of an adult engineering a situation in which he can be alone with

children. Second, the trial judge failed to give adequate weight to the youth of the appellant

and that the need for punishment and retribution was less in the case of a child offender

than the need for rehabilitation. For these reasons Miss Mitchell submitted that the sentence

of 6 years detention in respect of charge 1 was excessive and that this court should substitute

[3] We consider that there is force in each of these submissions. With regard to the first

we do not consider that it is fair to categorise the appellant’s offending as displaying any

real level of planning or gaining the trust of the complainers. They were friends of his sister

and came round to his house to play. This was not engineered by the appellant. There is

nothing to support any suggestion of planning or premeditation. This is not akin to a

situation in which an adult arranges matters so as to be alone with a child. Moreover the

appellant was merely the oldest of a group of children – that was the extent of any position

of trust which he held. We consider that the trial judge attached too much weight to issues

[4] The considerations to be taken into account when sentencing a child were discussed

by this court in Adam McCormick v HM Advocate [2016] SCCR 308 in which the dicta of

Lady Hale in R(Smith) v Secretary of State for the Home Department [2005] UKHL 51,

[2006] 1 AC 159 were adopted. In particular when sentencing a child regard must be had to the

best interests of that child as a primary consideration, under reference to the United Nations

Convention on the Rights of the Child, Article 3.1. In delivering the Opinion of the Court in

“In selecting the sentence for a child, the court must have regard to the best interests of

that child as a primary consideration. Moreover, a factor in that will be the desirability

of the child’s reintegration into society (Article 40). These points were again made in

‘[9] The problem which arises in this appeal is the identification of the correct

principles to be employed in sentencing an adult offender for crimes committed

when a child. The court accepts that, were the appellant to have been sentenced

when he was still a child, any sentence for these crimes would have been

significantly less than if the crimes had been committed by an adult. In

sentencing a person who is a child, regard must be had to the best interests of

that child as a primary consideration (see Hibbard v HM Advocate [2011] JC 149,

under reference to the United Nations Convention on the Rights of the Child,

Article 3.1). Regard must be had also to the desirability of the child's

Lady Dorrian went on to consider the dicta of Lady Hale in R(Smith) v Secretary of State for the

“These considerations are relevant to the retributive and deterrent aspects of

sentencing, in that they indicate that the great majority of juveniles are less

blameworthy and more worthy of forgiveness than adult offenders. But they also

show that an important aim, some would think the most important aim, of any

sentence imposed should be to promote the process of maturation, the development of

a sense of responsibility, and the growth of a healthy adult personality and identity.

That is no doubt why the Children and Young Persons Act 1933, in section 44(1),

required, and still requires, every court dealing with any juvenile offender to have

regard to his or her welfare. It is important to the welfare of any young person that his

need to develop into fully functioning, law abiding and responsible member of society

is properly met. But that is also important for the community as a whole, for the

community will pay the price, either of indefinite detention or of further offending, if it

“Other than to the extent that his youth made him less blameworthy than an adult, it

is not clear that the trial judge had in mind any of these important factors – the

welfare of the child offender, the need to facilitate rehabilitation and reintegration

into society. It does not seem that she considered these factors at all, merely allowing

a discount from an appropriate adult sentence to allow for immaturity. In that

[5] It does not appear to us that the trial judge in the present case has had adequate

regard to these considerations. In this respect we consider that he too has erred.

[6] For these reasons we are satisfied that the sentence of 6 years detention in respect of

charge 1 is excessive in the all the circumstances of this case. We shall allow the appeal,

quash the sentence of 6 years detention in respect of charge 1 and substitute a sentence of

3 years and 9 months detention on that charge backdated to the same date as the original

sentence. The sentence of 1 year’s detention on charge 2 concurrent with that on charge 1

will remain unchanged.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> VE, APPEAL AGAINST SENTENCE BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_12 (09 February 2018) URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_12.html Cite as: [2018] HCJAC 12, [2018] ScotHC HCJAC_12, 2018 SLT 246

Scottish High Court of Justiciary Decisons