[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 >> Stopper, Her Majesty's Advocate v. [2002] ScotHC 62 (10 May 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/62.html Cite as: 2002 SCCR 668, 2002 SLT 885, [2002] ScotHC 62, 2002 GWD 16-528

[New search] [Help]

Stopper, Her Majesty's Advocate v. [2002] ScotHC 62 (10 May 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hamilton Lord Kingarth Lord Drummond Young	Appeal No: C34/02 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL AGAINST SENTENCE by COLIN DAVID BOYD, Q.C., HER MAJESTY'S ADVOCATE Appellant; against THOMAS STOPPER Respondent: _______

 

 

Appellant: R. McCreadie, A.D.; Crown Agent

Respondent: A. Mackay; Bruce McDonald & Co

10 May 2002

1. The respondent was charged on indictment in the Sheriff Court and pled guilty to the charge in restricted terms. As restricted the charge narrated that on 27 May 2001 in Powis Lane, Aberdeen he assaulted the complainer and did "push her to the ground, place your hand over her mouth, place your hand up her skirt touching her underpants and this you did with intent to ravish".
2. The complainer, who was then 24 years of age, was making her way home on foot in the early hours of the morning. As she proceeded along George Street she became aware of the respondent behind her. He was a stranger to her. She felt uneasy and quickened her pace. The respondent, who had been drinking, "wolf-whistled" at her. She turned off George Street and entered Powis Lane. The respondent followed her and approached her in the lane. She tried to fend him off and screamed "What do you think you are doing?" The respondent persisted, pushing the complainer so that she lost her balance and fell to the ground. He straddled her and put one hand over her mouth. He put his other hand up her skirt touching her underpants. His belt was undone. Passers-by became aware of the complainer's screams, intervened and restrained the respondent. The complainer was distressed and hysterical. She sustained, by way of physical injury, a scratch to her stomach. The police were summoned and the respondent detained. At interview under caution he admitted that he thought that a kiss or a cuddle or even sexual intercourse might take place.
3. Before sentencing the respondent, who was then 45 years of age with no previous convictions, the sheriff called for a social enquiry report. At an interview with a social worker the respondent stated that his thinking at the time was that he would be get a "kiss, cuddle and a feel". The writer of that report concluded that the respondent had "demonstrated limited insight as to effects for his victim". He was assessed "as a medium risk of re-offending". Various options for disposal were discussed, including the possibility of a probation order with a condition that the respondent participate in a Sex Offenders Programme. At the time of sentencing the sheriff was informed that the complainer had recovered from her experience and continued to go into town alone. Before the sheriff counsel for the respondent urged him to adopt a non-custodial disposal, an order for financial compensation to the victim being a possible additional requirement. In the event the sheriff made a two year probation order with special conditions that the respondent pay £2,000 by way of compensation to the complainer, carry out 100 hours of unpaid work and attend a Sex Offenders Programme.
4. The Lord Advocate has under section 108 of the Criminal Procedure (Scotland) Act 1995 appealed to this court against that disposal on the contention that it was unduly lenient. In the course of these proceedings the Lord Advocate obtained an order under section 121A of the Act suspending ad interim the sheriff's disposal. By that time 32 hours of unpaid work had been performed. The respondent had also paid the sum of £2,000 into the hands of the sheriff clerk who retains it pending the outcome of this appeal.
5. In his Note to this court the sheriff has explained his reasoning as follows:

"In considering an appropriate sentence in this case I had as my starting point that the gravity of the offence would normally result in a custodial sentence. However, as the respondent had not previously been sentenced to imprisonment or detention I required to take account of section 204(2) of the Criminal Procedure (Scotland) Act 1995 and consider whether there was any other appropriate method of dealing with the respondent.

In considering alternatives to imprisonment I took into account that the respondent, at 45 years of age, appeared as a first offender, that he had pleaded guilty thereby sparing the complainer the added stress of giving evidence, that he had pleaded to an amended charge, that the assault had resulted in minor physical injury and that the complainer appeared to have made a full recovery from the consequences of the assault. While not ignoring any effect of a custodial sentence on the respondent's employment and his family, I gave little weight to these factors as mitigation. I did give careful consideration to the content and conclusion of the Social Enquiry Report and noted that the author thereof considered that there was a risk, albeit a medium risk, of the respondent re-offending and that that risk could be addressed by him participating in a Sex Offenders Programme.

In my opinion any sentence in this case required to both protect the public while still containing a punitive element to reflect the gravity of the offence.

In my view these two elements could best be achieved by a lengthy probation order requiring the respondent to participate in a Sex Offenders Programme and also, as punishment, requiring him to carry out unpaid work and pay compensation to the complainer."

6. The Advocate Depute, in submitting that the sheriff's disposal had been unduly lenient, referred to H.M. Advocate v Fallan 1996 S.C.C.R. 80. There the charge had been of indecent assault upon a woman who was a stranger to the respondent in a public street late at night. The court had stated that such an offence was one of such gravity that a custodial sentence should normally be imposed for it. The court had accepted the Crown's contention that it would only be if the mitigating factors were of such significance that it would be appropriate for a non-custodial sentence to be imposed. The court had set aside the sheriff's non-custodial disposal and substituted a term of imprisonment. In the present case the mitigating factors relied on by the sheriff were insufficient individually or cumulatively to justify a non-custodial disposal.
7. Mr Mackay for the respondent submitted that the appeal should be refused. It was acknowledged that the offence was one which would normally involve disposal by a custodial sentence. But the sheriff had properly started from that basis and had found a combination of factors which had led him to conclude that in the particular circumstances an alternative disposal was appropriate. His decision should not be disturbed. To warrant interference with the sentence it must fall outside the range of sentences which the judge at first instance, applying his mind to all the circumstances, could reasonably have considered appropriate (H.M. Advocate v Bell 1995 S.C.C.R. 244). The sheriff had relied on the factors (1) that the respondent was a 45 year old first offender, (2) that by pleading guilty he had spared the complainer the ordeal of having to give evidence, (3) that the charge as originally made had been restricted, (4) that the physical injuries sustained by the complainer had been minor, (5) that she had apparently made a full recovery and (6) that there was available a place on a Sex Offenders Programme at which, in the interest of public safety, the respondent could address his offending. The proper starting point in addressing the mitigatory factors was that the respondent was at 45 a first offender. Accordingly, in terms of section 204(2), as the sheriff had recognised, imprisonment could not be imposed unless the court considered that no other method of dealing with the respondent was appropriate. The circumstances in H.M. Advocate v Fallan were distinguishable. It was not apparent that the respondent there was a first offender. That respondent had gone to trial. He had apparently, in contrast with the present respondent, not accepted any responsibility for his actings. It was accepted that the acknowledged aggravation of intent to ravish (not distinguishable from intent to rape) gave a more serious aspect to the present offence, but the sheriff had also taken into account the need to protect the public in the future by requiring the respondent as a condition of probation to participate in a relevant programme. He had also made provision for financial compensation to the victim. In these circumstances, his disposal could not properly be said to be outwith the range of disposals reasonably available to him.
8. Even if the disposal were to be regarded as unduly lenient, that did not, Mr Mackay submitted, require this court to interfere with it. The court still had a discretion as to whether or not to interfere (H.M. Advocate v Jamieson 1996 S.C.C.R. 836). Prior to the coming into effect of the interim suspension the respondent had performed a substantial number of hours of unpaid work. He had also made payment of the compensation sum, albeit that had so far been retained by the sheriff clerk. He had commenced the Sex Offenders Programme and had attended that regularly until the suspension. He had lost his job as a result of the publicity surrounding his conviction but had subsequently obtained full-time employment on an agency basis. His imprisonment would make matters hard for his wife and dependant daughter. In these circumstances the court should exercise its discretion to refuse the appeal.
9. There is no doubt that the crime of which the respondent has been convicted is of such gravity that a custodial sentence would be the normal disposal. It involved a sexual attack, quite unprovoked, upon a woman who was a stranger to the respondent. It occurred in a public side-street late at night and was persisted in by the respondent until he was restrained by members of the public who had been alerted by the victim's screams. The conduct of the respondent in straddling the complainer and loosening his belt confirmed the very serious aggravation of this assault, namely, that it was with intent to rape. That feature makes the crime itself significantly more serious than that with which the court was concerned in H.M. Advocate v Fallan. For a crime of the present character it will, in our view, only be in exceptional circumstances that a non-custodial disposal will be appropriate. The sheriff was of course right to have regard to section 204(2) which obliges a court not to pass a sentence of imprisonment on a person such as the respondent who has not previously been sentenced to custody unless it considers that no other method of dealing with him is appropriate. The sheriff was also right to have regard to what otherwise might be said by way of mitigation. But we are satisfied that due account being taken of all relevant factors the sentence imposed was unduly lenient. It failed properly to reflect the need to condemn and to discourage serious sexual attacks on vulnerable females. While we recognise that the sheriff perceived that the public might in the case of the respondent be protected by a disposal which required his participation in a Sex Offenders Programme (he being described in the social enquiry report as of "medium risk" of re-offending) we are satisfied that the gravity of this offence properly and clearly required a custodial disposal even when all other relevant factors were taken into account. In our view the sentence imposed was unduly lenient.
10. We have considered whether in light of subsequent events we should or should not exercise our discretion to allow the appeal. We are satisfied that we should. Although a number of hours of unpaid work have been performed and the respondent duly attended the Sex Offenders Programme until it was interrupted by the suspension, these circumstances are not such as to persuade us that the sentence imposed by the sheriff should stand. They are better reflected in a modification of the custodial sentence which we regard as inevitable.
11. Having regard to all the circumstances we shall set aside the sheriff's disposal and substitute for it a period of imprisonment of eighteen months.
12. We should add that it appears that, while the offence of which the respondent was convicted was a sexual offence within the meaning of the Sex Offenders Act 1997, no statement was on the date of his conviction made in open court in terms of section 5(2)(a) of that Act nor any certification made in terms of section 5(2)(b). The Advocate Depute invited this court to rectify that position. Mr Mackay, under reference to Macpherson v Gilchrist 2000 S.C.C.R. 477, submitted that that course was not open. Having regard to the statutory language it is clear that the relative statement must be made by the court by which the person is convicted and on the date of his conviction. That cannot now be done. In these circumstances we do not accept the Advocate Depute's invitation. Procedure under section 5(2), however, is concerned only with evidential matters. The respondent as a person convicted of a relevant offence is and remains subject to the notification requirements of the Act.