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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2021] HCJAC 46
HCA/2021/325/XC
Lord Justice General
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD MATTHEWS
in
CROWN APPEAL AGAINST SENTENCE
by
HER MAJESTY'S ADVOCATE
Appellant
against
MICHAEL McCARTHY
Respondent
Appellant: A Prentice QC (sol adv) AD; the Crown Agent
Respondent: McSporran QC (sol adv); Central Court Lawyers, Livingston
26 October 2021
[1]
On 6 August 2021, at the High Court of Justiciary in Edinburgh, the respondent
Michael McCarthy was sentenced to a total of 5 years imprisonment, having been found guilty
after trial of five offences. These were, as follows:
Charge 1: the attempted rape of a male, contrary to section 1 of the Sexual Offences
(Scotland) Act 2009;
Charge 3: sexual assault of a second, 17 year old, male, contrary to section 3 of that Act;
Charge 4: taking indecent photographs of a child (the male in charge 3), contrary to
section 52(1)(a) of the Civic Government (Scotland) Act 1982;
2
Charge 5: possession of such photographs, contrary to section 52A(1) of the same Act;
and
Charge 6: distributing such photographs, contrary to section 52(1)(b) of that Act.
The respondent was sentenced to imprisonment for 5 years on each of charges 1 and 3, 2 years
on each of charges 4 and 5, and 3 years on charge 6, all to be served concurrently and
backdated to 19 August 2019, when he was first remanded in custody. The appropriate
certification was made in terms of the Sexual Offences Act 2003.
The Crown now appeal against these sentences on the grounds of undue leniency.
The circumstances of the offences
[2]
PD, the complainer in charge 1, was aged 32 and had known the respondent as an
acquaintance for many years. He had a significant drug problem. In summer 2019, he was
homeless and spent a lot of time sofa-surfing. Having received a benefit payment, he went to
see the respondent. The respondent had helped him out in the past and he heard that he was
struggling, so he bought some stuff with part of his benefit payment. He an d the respondent
then went to the locus to clean it up. He understood that the tenancy was about to be signed
over to the respondent. The complainer fell asleep on a bed, fully dressed. When he awoke it
was getting light. He could hear the respondent talking to people on his phone and saw that
he was walking up and down the corridor completely naked, with a black handled knife in his
hand. The complainer pretended that he was asleep and felt that he was stuck in the house.
He heard a noise, which he recognised as being from an aerosol can of deodorant or hairspray
or the like. The button on the can was pressed and the spray was set alight. The complainer
rolled off the bed and cowered into his jacket to block the flame but it went down the side of
his back, his jacket and the side of his face. He knew that the respondent was trying to burn
3
his jacket and thought that he was trying to scare him. Then the respondent cuddled into him,
stroking his hair and making noises as if to console him. He discarded the knife, but he still
had the deodorant in his hand. After stroking the complainer's hair for a minute or two he
urinated on his head and body. The complainer was disgusted and terrified and wanted to
get away, but he did not wish to do anything which would aggravate the respondent.
Nonetheless, he pleaded with the respondent, saying that he had not done anything wrong.
Then the respondent tried to put his penis in his mouth. He turned his face away but felt the
penis on his head. The respondent was masturbating at the same time. He touched the side
of his face and head at his cheek with his penis and the complainer, who was crying and
pleading, thought that the respondent wanted him to suck it. When he did not comply, the
respondent pinned him down, but eventually he managed to get away.
[3]
The complainer in charge 3 was 17 in August 2019. On 14 August he had a drink and
took an Ecstasy tablet. A message came through from the respondent inviting him to his
house to have some drugs. When he got to the respondent's house, a former co-accused LH
was there. LH told him to sit on the bed and put him in a hold with his hands behind his
back. He asked why that was happening, but got no response. The co-accused then hit him
with a baseball bat in the stomach and he and the respondent stripped the complainer naked.
He was tied up with a cable or something similar round his wrists, behind his back. The co-
accused said, "Give him a cold shower". At that, the respondent took him through to the
bathroom, turned the shower on him and poured water down his throat. The showerhead
was pushing down into his mouth so that he was coughing up water. This went on for 5 or
10 minutes. He was not sure if blood was coming out of his mouth and he was struggling to
breathe. The respondent told him that he was going to murder him. The complainer had no
idea why this was happening. After the shower hose was used for about 10 minutes, the
4
respondent told him to get on his knees, and said, "I'm going to fucking piss all over you", but
the complainer knew that it was not urine which landed on his back. He was facing the wall
the whole time, but he looked round and saw the respondent's erect penis. He was
masturbating and ejaculated on the complainer's right shoulder. He was still in the shower at
the time. The shower was then turned off and he got his clothes together and walked out.
While he was in the shower, the respondent had said, "This is what you fucking deserve". He
replied that he had not done anything. He was crying and asking the respondent to stop. The
whole thing went on for about 30 to 35 minutes.
[4]
The complainer was aware that when he was on his knees the respondent was filming
him with his phone. At the end of it all he said, "You can fucking leave now, don't tell no
cunt". Some of his friends told him later that they had seen the video which the respondent
had taken.
[5]
LH gave evidence and, amongst other things, said that the respondent had pulled the
complainer into the bathroom and secured the door behind him, saying something about
teaching him a lesson. Although LH tried to get in, the respondent said, "This is too fucking
sick for you to see".
[6]
In due course, the respondent's mobile telephone was seized and police were able to
see a video recording of the incident. It was agreed by joint minute that the footage had been
sent from his phone to a number of other persons. There was a message on the phone
indicating that the respondent was going to be taking the complainer host age.
Subsequent Procedure
[7]
When the advocate depute moved for sentence, he tendered a list of previous
convictions. Amongst these convictions are the following:
5
In 2008, an assault to injury and permanent disfigurement, involving a glass, which
resulted in detention for 9 months;
In 2009, an assault to injury and `housebreaking' resulting in detention for 18 months
and 7 months respectively;
In 2010, an assault to injury, which resulted in a probation order of 2 years duration
and a compensation order in the sum of £500;
In 2011, a breach of probation, which resulted in detention for 51 months.
In the same year, an assault to injury, resulting in 45 months detention.
In 2014 in the High Court, convictions for assault by threats, involving a knife, theft by
opening a lockfast place (an ATM) and fraud, resulting in imprisonment for
18 months, as well as a return order under section 16 of the Prisoners and Criminal
Proceedings (Scotland) Act 1993 for a period of 6 months;
In 2016, a contravention of section 5(1)(b) of the Firearms Act 1968, involving a
handgun and attracting a sentence of imprisonment for 2 years.
In 2018, a contravention of section 21 of the Firearms Act 1968, resulting in 8 months
imprisonment.
In 2018, a charge of attempted housebreaking, resulting in a 15 months community
payback order.
In 2019, that order was breached and a sentence of 14 days imprisonment was
imposed.
[8]
The trial judge decided to call for a Criminal Justice Social Work Report, incorporating
a Risk Assessment, for the purpose of considering an extended sentence, but the respondent
declined to be interviewed during the first adjournment for that purpose. Following a further
adjournment, the respondent's solicitor advocate informed the court that he did not wish to be
interviewed and wished to be sentenced that day. The judge asked the respondent directly
whether he would agree to be interviewed by a social worker if he adjourned sentencing
further for that purpose and made it clear that if he did not co-operate in that way, the risk
was that the custodial sentence imposed would be longer than it might otherwise have been
the case. The respondent indicated that it was unlikely that he would see the social worker if
there was a further adjournment and the judge concluded that no purpose would be served
by one.
6
Mitigation
[9]
The solicitor advocate said that the respondent's head was in something of a mess. It
was clear that his engagement was not the same as it had been before the trial. He felt that he
was a target in prison. Very properly, the solicitor advocate made available a previous
Criminal Justice Social Work Report, which had been for a court hearing on 21 December
2018. He was content that the court should proceed to sentence on the basis of that r eport. We
are grateful to him for making that same report available to us.
[10]
As the trial judge tells us, the previous report was prepared in respect of a charge of
attempted housebreaking with intent to steal. The respondent had said that he was drunk at
the time. He reported how he had been diagnosed with ADHD and depression, but was not
on medication. He was using a heroin substitute daily and diazepam regularly. He would
also indulge in binge drinking and the occasional abuse of cannabis. The author of the report
did not identify any current public protection issues, but said that the respondent's history of
violent offending was concerning and there was a risk that he would cause further harm in
the community. He had shown a capacity to commit serious offences and, unless he was
prepared to address his issues with drugs and alcohol and significantly change his lifestyle,
then further offending would appear highly likely.
[11]
The judge was prepared to have regard to that report as background, but considered
that it could not form the basis for an extended sentence, given the terms of section 210A(4) of
the 1995 Act, which he considered required an up-to-date report.
[12]
He was of the view that sentences of 5 years in total were sufficient to mark the gravity
of the assaults, committed against victims who were vulnerable in different ways and in each
case unable to escape. He took account of the degrading behaviour to which they were
subjected. On the other hand, there was no physical injury libelled or proved, there was no
7
penetrative activity and the sexual contact, although clearly distressing and degrading, was
limited to contact by the penis on the skin of the face and head, the removal of clothing in
charge 3 and the emission of semen. He gave consideration to the imposition of concurrent
sentences of 6 years, but concluded that 5 years was no more severe than was necessary to
achieve the appropriate purposes of sentencin g. He paid some regard to the Definitive
Guideline of the Sentencing Council of England and Wales as a comparator or cross-check.
While the Note of Appeal also makes reference to that, the advocate depute accepted that it
was of limited assistance in this case. No reference was made to it on behalf of the respondent
and we need say no more about it, since we agree with the advocate depute.
[13]
The trial judge decided to impose concurrent rather than consecutive sentences on the
basis that the disposal amounted effectively to a cumulo sentence. Had he made the sentences
consecutive, they would have had to be shorter.
[14]
In view of the fact that the charges relating to indecent photographs were aggravating
features which he took into account in relation to charge 3, he ordered the sentences on those
charges to run concurrently in order to avoid double counting. We do not understand the
advocate depute to take any issue with that approach.
[15]
In fairness to the trial judge, he told us that he appreciated that there might be a
question whether the sentence imposed adequately reflected the totality of the offending and
the need for public protection.
Submissions
Crown
[16]
The foregoing sentence encapsulates the Crown's position in a nutshell. An extended
sentence should have been imposed. The judge could have made use of the report which was
8
made available or called for another report, even if that had no input from the respondent.
While the Note of Appeal suggested that the sentences should have been consecutive, a longer
sentence imposed in cumulo would have been unobjectionable. It would not have been an
answer just to impose a longer period in custody in place of an extended sentence. The whole
point of the latter is that it gives an offender the opportunity to reintegrate into society while
being subject to close supervision with, as it were, the Sword of Damocles hanging over him.
If he were released from a longer sentence without such supervision, then he would
effectively be on his own and there would be no, or an insufficient, element of public
protection while he came to terms with life on the outside. Given the appalling nature of
these offences and the respondent's record, the sentence was not only lenient, but unduly so,
in that it was outwith the range which could reasonably be considered appropriate, as
discussed in HM Advocate v Bell 1995 SCCR 244.
Respondent
[17]
Mr McSporran accepted that the sentence was lenient; the question, of course, was
whether it was unduly so. He took no issue with the suggestion that an extended sentence
could have been based on the report which he submitted, or on a desktop report, without the
respondent's co-operation. As a result of the respondent's attitude, he had asked his
instructing agents if there was a previous report and that dated December 2018 was provided.
He pointed out that it only pre-dated the offences on the indictment by a matter of months.
The respondent was remanded in custody in August 2019, so his circumstances had not
changed significantly. In short, there was sufficient material before the trial judge for an
extended sentence to be imposed. He fully accepted that no accused could thwart the course
of justice by refusing to co-operate. Whether or not the sentence was unduly lenient, as
9
opposed to merely lenient, was a matter for the court and he felt unable to make any
meaningful submissions in that regard.
Analysis and decision
[18]
It was entirely correct for counsel to point out that no accused person can, by his own
hand, prevent the court from imposing an appropriate sentence, including an extended
sentence. We are quite satisfied, having considered the appalling and degrading nature of
charges 1 and 3 and the respondent's record, that the question of an extended sentence was
one which the trial judge had to consider. The provision which caused him difficulty, namely
section 210A(4) of the 1995 Act, is in the following terms:
"A court shall, before passing an extended sentence, consider a report by a relevant
officer of a local authority about the offender and his circumstances and, if the court
thinks it is necessary, hear that officer."
It is customary for reports, which are prepared in contemplation of an extended sentence, to
incorporate a Risk Assessment. While no doubt such assessments are prepared by social
workers to comply with their own professional standards, it is not an absolute requirement
before a court can proceed to impose an extended sentence. A report about the offender and
his circumstances is all that is required. Where the offender refuses to cooperate in the
preparation of a report this does not mean that a report should not be prepared. It can be
based on the information available to the social worker. As it happens, there was a Risk
Assessment in the December 2018 report and it made reference to the respondent's previous
convictions. As counsel pointed out, it was relatively recent. In our opinion, it would have
been open to the trial judge to rely on that report for the purposes of the statute. We have in
fact decided that it is appropriate for us to do so. Whether a pre-existing report is a sufficient
basis for an extended sentence will be a question of fact and degree. The passage of several
10
years, for example, might militate against it, as might any intervening major changes in an
accused person's circumstances. In such a case, if an accused failed to co-operate, a desktop
exercise could be undertaken.
[19]
We note that there is no time limit expressed in section 210A(4), as there is, for
example, in section 203(1A)(b).
[20]
Having regard to the nature of these offences and the respondent's record, we are
satisfied that the disposal was indeed unduly lenient. It remains for us to consider whether
consecutive sentences should be imposed for charges 1 and 3, or whether a cumulo sentence
would be more appropriate. We have decided that the latter is the preferable course. As was
pointed out in DS v HM Advocate 2017 SCCR 129, an extended sentence may be imposed in
respect of a cumulo sentence. It is clear to us, having regard to the content of th e report, the
nature of the offences and the respondent's record, that he represents a high risk of
endangering the public. We are not satisfied that the conditions of an ordinary licence would
be sufficient to protect the public when he is released from prison and accordingly an
extended sentence must be imposed.
[21]
We shall quash the sentences of 5 years imprisonment on each of charges 1 and 3 and
in their place substitute, in cumulo, an extended sentence of 10 years imprisonment, consisting
of a custodial element of 7 years and an extension period of 3 years. It will run from
19 August 2019.
[22]
The sentences on the other charges will be undisturbed.
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