APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lord Philip	[2014] HCJAC 58 XC588/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL AGAINST SENTENCE   by   DAVID AUSTIN   Appellant;   against   HER MAJESTY’S ADVOCATE   Respondent:   _____________

 

Appellant:  Mackenzie, Advocate;  Kwek Defence, Edinburgh

Respondent:  Hughes, AD;  Crown Agent

 

14 May 2014

Background

[1]        David Austin was convicted, on indictment, at Edinburgh Sheriff Court, of having failed to comply with the notification requirements imposed under Part 2 of the Sexual Offences Act 2003 in two separate respects.  He had failed to notify the police that he had been issued with a passport in 2008 and persisted in that failure through to 2013. He had also failed to notify them of plans to travel abroad for more than 3 days and persisted in that failure for a period of some 4½ months, at the beginning of 2013. 

[2]        A sentence of 3 years imprisonment was imposed in relation to charge 1 and one of 42 months (including 6 months attributable to bail aggravations) was imposed in relation to charge 2. The sentences were to run concurrently with one another.

[3]        The notification requirements arose from the appellant having been placed on the Sex Offenders Register when convicted of a contravention of the Civic Government (Scotland) Act 1982, section 52(1)(a) which relates to the taking of indecent photographs of children or permitting such photographs to be taken, aggravated by the offence being sexual in nature.  He was sentenced to 5 years imprisonment.  The notice of previous convictions also discloses that he was convicted of sexual offences in Canada in 1993 and 1994 (for indecent exposure and indecent assault, the latter involving two charges and sentences of imprisonment of 2 and 4 years).

[4]        The circumstances were that, in January 2013, by which time he had been released on licence, the appellant disappeared to the continent without telling anyone, including his mother, where he was going and without having told the police about his passport.  A European arrest warrant was issued.  He was traced to an address in Spain where he was arrested and he was extradited to Scotland at the end of May 2013, having spent just under a month in custody in Spain awaiting his removal to Scotland. 

 

The Appeal

[5]        On appeal, it was submitted both in the written case in argument and in oral submission today, that the sentences imposed failed to take proper account of the appellant having no previous convictions for failure to comply with the requirements of being on the Sex Offenders Register.  It was also said that the sheriff ought to have taken some account of the time that he had spent on remand in Spain in connection with the extradition proceedings.  Miss Mackenzie, for the appellant, referred us to the case of R v Petraitis 2013 EWCA Crim 997, where a sentence of 6 months (discounted from 8 months on account of a plea of guilty) was substituted by the Court of Appeal Criminal Division in relation to a deliberate disregard of the notification requirements.

[6]        Miss Mackenzie submitted that this appellant had been subject to the stringent requirements of being on the Sex Offenders’ Register since 2004 and, other than the matters referred to in the present charges, he had complied with them; that ought to have been given significant weight.  She did accept that in this case there was a blatant and sustained failure to notify the authorities that the appellant had obtained and retained a passport but the sentence was still, she submitted, excessive. 

 

Decision

[7]        This was a case in which there were two separate failures to notify. The first one, in relation to the passport, was persisted in over a substantial period of time - nearly 5 years. The second one was persisted in for a not insignificant period of about 4½ months.  Further the failures to notify were related to a practical effect, namely the appellant's disappearance to Spain and the need to go through an extradition procedure to have him returned to the jurisdiction.  The appellant's failures were inexcusable and there was no relevant mitigation. 

[8]        We have considered the decision in Petraitis but we do not feel we can look to it for very much by way of guidance given the distinctions that can be drawn between the  facts of that case and the background of that offender and that neither it nor the Grosvenor case to which it refers are “guideline” cases as that term is used south of the border.  However it is, we accept, of some note that the sentence imposed there was so much lower than that imposed in the present case.

[9]        What can also usefully be taken from the Petraitis case is the expression of a view with which we would respectfully agree, namely that the notification provisions are important principally for public safety reasons and that offenders on release must be made to realise the importance of these requirements.  All that said, however, having given careful consideration to the submissions presented to us, we have reached the view that the sheriff's sentences in the present case were in the case of each charge excessive, given the nature of the offending and the lack of prior analogous offending.  We also consider that the sentence on each charge ought to have been the same.  Although the sentence on charge 2 required to allow for the bail aggravations the contravention in that charge occurred over a significantly lesser period than that in the first charge.  We will, accordingly, quash the sentences imposed and, in relation to the first charge, substitute a sentence of 18 months and, in relation to the second charge, substitute a sentence of 18 months, 6 months of which

is attributable to the bail aggravation. Where we do agree with the sheriff is that both sentences should run concurrently to each other.