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

BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!

	[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> MOORE, APPEAL AGAINST SENTENCE BY AGAINST HER MAJESTY'S ADVOCATE [2018] ScotHC HCJAC_40 (12 June 2018) URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_40.html Cite as: [2018] HCJAC 40, [2018] ScotHC HCJAC_40, 2018 SCCR 174, 2018 GWD 23-295

[1] On 31 January 2018 in Ayr Sheriff Court the appellant pled guilty to the following

“(1) between 11 November 2010 and 22 March 2017 … you … did take or permit to

be taken or make indecent photographs or pseudo-photographs of children;

CONTRARY to the Civic Government (Scotland) Act 1982 section 52(1)(a) as

(2) between 11 November 2010 and 22 March 2017 … you … did have in your

possession indecent photographs or pseudo-photographs of children;

CONTRARY to the Civic Government (Scotland) Act 1982 section 52A(1);

(3) between 4 February 2014 and 25 February 2017 … you … did distribute or show

CONTRARY to the Civic Government (Scotland) Act 1982 section 52(1)(b) as

[2] There were 863 images in total, 799 still, and 64 moving. A large percentage in each

case was category A. Of the moving images, 46 out of 64 were category A (i.e. about two

thirds). Many images had been deleted, but were recovered by specialist forensic techniques.

[3] The sheriff (Sheriff Cunninghame) imposed a sentence of 27 months imprisonment,

representing a starting point of 40 months discounted by one third to reflect the plea of

guilty. The sheriff also imposed a Sexual Offences Prevention Order (SOPO) in terms of

section 104 of the Sexual Offences Act 2003, for a period of 10 years, containing the following

1. That the appellant must not access the internet unless using a device that is

capable of storing the internet search history and he is prohibited from deleting

2. That the appellant must not have installed on any device capable of accessing the

internet, any software capable or designed to delete or disguise the internet

3. That the appellant must allow officers from the Police Service of Scotland on

request by them, access to any device used which is capable of accessing the

4. That the appellant must not have unsupervised contact with any child under the

[4] The appellant appealed against the sentence. He contended that the length of

sentence was excessive; that a SOPO was unnecessary in the circumstances; and esto it was

necessary, that its length and requirements were not justifiable.

[5] We deal first with the length of the custodial sentence. We note that the appellant is

aged 56 and that he is a first offender with no previous convictions. We also note that he has

suffered considerably as a result of his offending and has lost his home life, his employment

and his standing in the community. Further, counsel for the appellant drew our attention to

the fact that many of the images were deleted by the appellant after being viewed, and

images were recovered only by the use of specialist forensic techniques. Also any sharing of

the images had been “peer-to-peer” rather than peer-to-group.

[6] We accept that all of the above can be regarded as mitigating factors.

[7] The English guidance (Sexual Offences: Definitive Guideline - England and Wales)

suggests a starting point of 48 months for possession and distribution of category A images

(i.e. 3 years for distribution, 1 year for possession, assuming a consecutive approach).

Bearing in mind that the appellant’s distribution and possession involved other categories

(B and C) in addition to category A, the sheriff’s starting point of 40 months falls well within

[8] However, we accept that it is possible, in certain cases, that the mitigating factors

may outweigh any aggravating factors, resulting in an adjustment of the starting point. We

have therefore carefully considered whether this could be such a case. In our view,

First, the period of time over which the appellant actively searched for images was

Secondly, the appellant not only possessed images but shared them with others;

Thirdly, any subsequent deletion of the images by the appellant is not in our view a

mitigating factor, as they had been viewed by him, and some were shared;

Fourthly, there were 863 images in total, 799 still and 64 moving. A large percentage

in each case was category A and in particular of the moving images, 46 out of 64

were category A (i.e. about two thirds). As Lord Justice Clerk Gill pointed out in HM

Advocate v Graham 2010 SLT 715 at paragraph [32], the “high hundreds” are properly

described as a “large” number of images. Furthermore, as Lord Gill noted at

paragraph [33], “a moving image may be more vivid and corrupting than a still”.

The net result in this case is a “significant amount of category A images” qualifying

for a significant custodial disposal (Wood v HM Advocate 2017 SLT 190

A fifth factor which we take into account is that the English guidance is simply that:

it is “guidance”. It should not be applied in a mechanistic fashion (HM Advocate v

Graham 2010 SLT 715 paragraphs 21-22 and 51-59; Archer v HM Advocate 2014 SLT

The sixth and final point we would make in this context is that in Scotland, no credit

[9] In this case, therefore, we are not persuaded that the mitigating factors outweigh the

aggravating factors, nor are we persuaded that the sheriff erred to any extent in selecting a

starting point of 40 months. We accordingly refuse the appeal so far as directed at the length

[10] Section 104 of the Sexual Offences Act 2003 provides inter alia:

“(1) A court may make an order under this section in respect of a person (“the

(b) … it is satisfied that it is necessary to make such an order, for the purpose

of protecting the public or any particular members of the public from serious

[11] The appellant will serve a period of imprisonment. We would expect there to be a

rehabilitative component to his time in custody, including relevant programmes and

courses. After a maximum period of 13 ½ months, he will be released on licence. The

conditions of his licence will be specified by the parole board and are likely to include

conditions very similar to conditions 1-3 of the SOPO. He will, therefore, be subject to

monitoring and management during his period of licence. If there is any concern arising

from his behaviour during that period, an application can be made to the sheriff for a SOPO.

[12] As was pointed out in EA v Procurator Fiscal Dundee [2014] HCJAC 96 at paragraph

“When considering whether or not a SOPO is necessary, the court must have regard

to the other protections which may be afforded to the public as a result of the

conviction or other aspects of the offender’s sentence. A SOPO will not be necessary

In R v Smith [2012] 1 Cr App R (S) 82 at paragraph 8, the issue was focussed in the following

(1) is the making of an order necessary to protect from serious sexual harm

(2) if some order is necessary, are the terms proposed nevertheless oppressive;

What is required, to quote paragraph 20 of EA, is “a proper and sound basis” for the

imposition of a SOPO. There has to be a real risk that the offender may cause serious sexual

harm to the public or any particular members of the public in order to satisfy the statutory

[13] In this particular case, the criminal justice social work report at pages 2, 4, 5 and 7

makes a risk assessment using various tools. The resultant risk of sexual reoffending is

categorised as “low” to “moderate” (the moderate level being at the lower end of the

moderate range). It is noted that there was no indication that any escalation to contact

[14] Against that background, the issue in this case is whether the test of “necessity” (as

opposed to “usefulness”) has been met. We are not satisfied that the test has been met.

Accordingly we shall quash the SOPO. The appeal is allowed to that extent.

Scottish High Court of Justiciary Decisons