Lady Smith

Appellant: Kennedy; John, Pryde & Co, Edinburgh

Respondent: Cleland; Crown Agent

11 December 2013

[1] Craig Thomson pled guilty at a continued first diet to contraventions of section 52(1)(a) and 52(a)(1) of the Civic Government (Scotland) Act 1982. The circumstances were that he was found to have downloaded and be in possession of a number of indecent images which he had stored on an external hard drive from his home computer. The images were all moving images. Forensic examination demonstrated that there were 189 images in total. They were categorised in terms of the definitive guidelines used in England and Wales and approved by this court in the case of Her Majesty's Advocate v Graham [2010] SCCR 641, as follows: there were 7 at level one, 67 at level two, 12 at level three, 90 at level four and 5 at level five.

[2] The sheriff sentenced the appellant to an extended sentence of four years, one year of which was to be the custodial part. He also imposed a sexual offences prevention order for five years, restricting internet access other than for study purposes, barred him from owning a computer or other device having an internet facility and required him to make himself available for both announced and unannounced visits by his supervisor at his place of residence.

[3] In arriving at his decision on sentence, the sheriff had regard to (a) a detailed criminal justice social work report which included the conclusion that the appellant posed overall a medium risk of reoffending whilst noting that the specialist assessment showed he was at high risk and that the appellant required to undergo a lengthy period of sex offender related programmes; (b) a defence report from Gary McPherson, clinical psychologist, who concluded that the appellant presented a low to moderate risk of analogous offending if he were not managed with appropriate interventional supervision (Mr McPherson had also recommended risk management involving the conditions which ultimately found their way into the sexual offences prevention order); (c) the guidance stated in the case of Graham; (d) that the appellant was to all intents and purposes a first offender and (e) that work with the appellant would require to be undertaken over a lengthy period. He concluded that a community sentence would not be appropriate whilst an extended sentence with a significant non‑custodial element would be.

[4] The appeal was presented on the basis that imprisonment was excessive, downloading images is not as serious as personally taking photographs, the activities were for personal use only, there was no evidence of collecting behaviour, there was no evidence of internet seduction, the number of images involved was relatively small and even if, as per the Graham guidelines, custody was appropriate, 12 months was excessive. It was also said that the sheriff placed undue emphasis on the fact that the images were moving images. Further, it was submitted that the sexual offences prevention order was unnecessary, oppressive and disproportionate. The appellant did not present a risk of serious harm. Preventing internet access for five years would be draconian and it was imposed in circumstances where there had been no fair hearing because the Crown had made no motion for such an order and the sheriff had not indicated in advance that he was considering doing so.

[5] In the course of oral submission, Mr Kennedy, for the appellant, emphasised that this was not a contested case. Further, the appellant had never previously received a custodial sentence, a community based disposal would have been "just" appropriate. The option of rehabilitation would not be available within custody. Imprisonment for any short term prisoner seemed to preclude participation in the rehabilitation programme. The appellant was a student in Glasgow before he was convicted. He could resume these studies in Autumn 2014 and although no group programmes were available in the area where he lived, he could engage in group work of the sort referred to once he began his studies in Glasgow again. Also, if there were programme availability for him in Glasgow before then, he would be content to travel. Mr Kennedy stressed that the appellant had already been in custody for the equivalent of a four and a half month sentence. He accepted that the range identified in the case of Graham at paragraph (d) of the definitive guidelines, namely a custodial sentence between 26 weeks and two years was relevant for the purposes of the present case.

Decision

[6] We have carefully considered the submissions made regarding the four year extended sentence incorporating a custodial element of 12 months. We are not satisfied there has been any miscarriage of justice. That sentence followed the guidance provided in Graham and we are not persuaded that the unavailability of a suitable programme within the prison setting is a reason for departing from it. Suitable protection of the public will be provided within the context of the extended sentence. It will, of course, also be open to the appellant to heed the advice which has been articulated in the current reports and the advice which will no doubt be articulated by those responsible for his sentence in due course.

[7] We are, however, persuaded that we should quash the sexual offences prevention order. It was imposed in circumstances where the Crown had not sought such an order and the sheriff had not alerted the appellant's agent to the fact that he was considering imposing one. He should have done so. Further, we think there is some merit in the submission that, in the circumstances of this case, it would be disproportionate to impose the restrictions set out in it.