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[2017] HCJAC 37


Lord Justice General

Lord Malcolm

Lord Woolman











Appellant: Mackintosh; Faculty Appeals Unit (for George Mathers & Co, Aberdeen)

Respondent: Farquharson AD; the Crown Agent


25 May 2017

[1]        On 13 May 2016, at Aberdeen Sheriff Court, the appellant was found guilty of three charges.  The first was of sexually assaulting KT, aged 12, on 25 November 2014 in Park Place, Aberdeen, by following her, making sexual remarks to her and touching her vagina over her clothing, all contrary to sections 20 and 24 of the Sexual Offences (Scotland) Act 2009.  The second was of exposing himself to KB, aged 8, on 26 January 2015 in Flourmills Lane, Aberdeen, approaching her and engaging her in conversation, contrary to section 25 of the 2009 Act.  The third was of exposing himself to GG, aged 10, in Seafield Road, Aberdeen, contrary to section 25.

[2]        On 25 July 2016, the sheriff imposed an extended sentence of 5 years and 3 months, of which 2 years and 3 months was the custodial element.  The sheriff explains that the  latter was made up of consecutive periods of 9 months, 6 months and 12 months, including 3 months in respect of a bail aggravation. 


[3]        The appeal against conviction relates to the sufficiency of evidence of identification on charge 2.  KB testified that she had been walking to school in the morning, when she was approached by a man in Flourmills Lane.  This is in central Aberdeen.  She described the man who approached her as of Asian or Indian ethnic origin, with hair which was black, but not long.  His accent was not Scottish.  He was wearing a green jacket and denim jeans.  At a VIPER parade on 31 January 2015, the complainer had made no positive identification of the appellant’s image.  Indeed she said that the man had not been shown in the images.  Nevertheless, she stated that the appellant’s image “looked like” the man, because he had “No facial hair.  Nothing else”.  After the encounter, the complainer had crossed Union Street, over to the Castlegate and had seen the man heading down King Street in the direction of Bridge of Don. 

[4]        A police sergeant identified the appellant on CCTV images at about 8.30am in the area of the Castlegate.  He was wearing a dark green jacket and grey jeans.  In his interview with the police, the appellant admitted that he had been walking along Flourmills Lane at or about the time of the incident. 

[5]        The contention was that there was insufficient evidence of identification to allow the operation of mutual corroboration to take place.  The basis for this was that, during her evidence, the complainer had confirmed what she had said at the time of the VIPER parade; that the man had not been shown in the relevant images, albeit that the appellant was someone who looked like him.  It was submitted that the remaining factors concerning the identification from the CCTV images and the appellant’s admission of presence in Flourmills Lane, did not assist in providing a sufficiency.

[6]        The complainer described her molester as of Asian or Indian ethnic origin and wearing a green jacket.  Although she did not make a positive identification at the VIPER parade, and said that the man was not shown in the images, she went on to say that the appellant’s image did look like the man.  The appellant was identified independently from CCTV images, spoken to by the police, as being in the vicinity at the material time and significantly wearing a green jacket.  The appellant, when interviewed, admitted that he had been in the Lane at or about the material time.  The combination of this evidence was sufficient on its own, even without the application of mutual corroboration, to prove the involvement of the appellant in the crime.  It was then a matter for the jury to decide whether to draw the relevant inference that the appellant was the molester.  For these reasons, the appeal against conviction is refused.



[7]        On sentence, it was maintained that custody was not the only appropriate disposal.  The appellant was a first offender and therefore had the benefit of section 204(2) of the Criminal Procedure (Scotland) Act 1995.  The sheriff took the view that a custodial sentence was inevitable, especially as the appellant was described as not suitable for treatment in the context of a Community Payback Order, because he continued to deny committing the offences.  He considered that an extended sentence was necessary in order to protect the public from serious harm.  In the course of his report, he stated that:

“Given that the custodial part of the sentence which I imposed was less than 4 years in length, the appellant will not be on licence at all following his release.”


[8]        The contention was that, although the complainers were young children, custody was not the only appropriate disposal when there was no “direct skin contact”, penetration of any sort, or breach of trust.  Secondly, the sheriff had failed to address the cumulative effect of the sentences.  Thirdly, he had failed to address the correct test for an extended sentence under section 210A of the 1995 Act.  This was whether the period of licence would be inadequate for the purposes of protecting the public from serious harm.  Particular focus, at the stage of the appeal hearing, was placed on the sheriff’s remark that the appellant would not be on licence following upon his release.  It was also stated that the existence of a Sexual Offences Prevention Order of 5 years, which had been made, and the fact that the appellant would be subject to the notification requirements of the Sexual Offences Act 2003 for a period of 10 years, mitigated against imposing an extended sentence.

[9]        The court is satisfied that, having regard to the number of charges and the ages of the complainers, custodial sentences were appropriate.  Although it is true that these were not offences involving grooming, or direct skin contact, as it was put in the submissions, the appellant had sought out opportunities to molest young girls and took advantage of these opportunities as they arose.  The court is not persuaded that the sheriff failed to have regard to the cumulative effect of the consecutive custodial sentences.  He did have regard to those in selecting the totality.

[10]      It may be, and the court observes that it does not have the sheriff’s comments on the matter as it was not subject to a ground of appeal, that an error was made by the sheriff in relation to the situation upon the appellant’s release.  The Crown accepted that an error had been made.  In terms of section 1AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the appellant would be on licence after his release, as this was a sexual offence involving notification requirements.  The other significant factors, although again not focused in the grounds of appeal, are the effect of the SOPO and the notification requirement.  Having regard to all of the circumstances, the court is satisfied that this was not a case in which an extended sentence was appropriate.  It will therefore quash that element, but otherwise refuse the appeal.