Andrew George Miler v. His Majesty’s Advocate [2024] HCJAC 3

Note of appeal against sentence:- On 18 May 2023, at Edinburgh High Court, the appellant pled guilty under the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to four charges:- (1) possession of indecent photographs or pseudo-photographs of children contrary to section 52A(1) of the Civic Government (Scotland) Act 1982; (2) abduction of AB a child under the age of 13 by inter alia locking her in a bedroom and detaining her against her will; (3) sexual assault of AB a child under the age of 13 by inter alia penetrating her vagina and anus with his fingers contrary to sections 19, 20 and 25 of the Sexual Offences (Scotland) Act 2009; and (4) intentionally causing AB a child under the age of 13 by intentionally causing her to look at a sexual image by watching pornography and fetish videos in her presence contrary to section 23 of the Sexual Offences (Scotland) Act 2009. On 18 October 2023, following consideration of a Risk Assessment Report, the sentencing judge imposed a cumulative extended sentence of 28 years, with a custodial element of 20 years which was discounted by 2 years on account of the plea of guilty. No separate sentences were passed in relation charges (1) and (4) in which the statutory maximums were 5 and 10 years respectively. The appellant appealed against the sentence imposed it being contended that it was excessive. The appeal was thereafter remitted to a bench of three judges with a view to consider whether the Risk Criteria were met and an Order for Lifelong Restriction should be imposed. At the original sentencing diet counsel on behalf of the appellant persuaded the sentencing judge that the Risk Criteria were not met and that an extended sentence was appropriate. At the appeal hearing it was submitted that the custodial element of the extended sentence was excessive and that a discount of 10% on account of the plea of guilty was insufficient and did not reflect the utilitarian benefit of the early plea. On the issue of whether an OLR might be substituted for the extended sentence it was submitted that the test was whether, in terms of section 210E of the 1995 Act, the offence of itself or as part of a pattern of behaviour, was such as to demonstrate a likelihood that the appellant, if at liberty, would seriously endanger the lives or well-being of the public. It was further submitted that seriousness was not determinative, likelihood meant probability and the court had to be satisfied that there was not just a chance of endangerment but that as a matter of probability such endangerment would occur. Here the court refused the appeal. The court did not consider that an OLR was appropriate having regard to the appellant probably being aged 70 or older when he is released from custody with a further lengthy period of supervision and having regard to a number of factors the court was not satisfied that the appellant will seriously endanger the public upon his release. The court considered that the level of the custodial element required in a case of such seriousness meant that the level of discount ought not normally exceed one sixth but ought to have been greater than two years as was allowed in the present case. The court highlighted a number of errors in the sentencing judge’s reasoning in selecting the sentence, however, in considering the issue of sentencing afresh and taking into account (1) the extreme depravity of the principal crime; (2) the appellant’s psychological difficulties as described in the RAR; and (3) the appellant’s first conviction for a crime of this seriousness at the age of 53, the court reaffirmed that an extended sentence of 28 years comprising of a custodial period of 20 years was not excessive even if a greater discount ought to have been allowed.