David Moffat v. His Majesty’s Advocate [2024] HCJAC 24

Note of appeal against sentence:- The appellant pled guilty on indictment at a first diet at the sheriff court to five offences:- (1) charge 3 involved causing a former partner fear and alarm by repeatedly sending her abusive and threatening messages; (2) charge 4 was one of causing fear and alarm to his former partner’s new partner by sending him abusive and derogatory messages on social media and threatening to kill his former partner; (3) and (4) charges 6 and 8 were contraventions of section 6 of the Sexual Offences (Scotland) Act 2009 by intentionally causing others to look at sexual images; and (5) charge 10 was one of behaving in a threatening and abusive manner in a police station. The Sheriff imposed a cumulo sentence of 32 months imprisonment on all five charges discounted from 42 months to reflect the guilty pleas. The Sheriff did not indicate what the sentences would have been on any of the charges had she not elected to impose a cumulo sentence and, in particular, she did not explain what sentences she would have imposed on the two sexual offences, charges 6 and 8. As such, the result of the Sheriff’s approach was that the appellant, having been sentenced cumulatively to a single term of 32 months imprisonment for offences (including the sexual ones) became subject to the notification requirements for an indefinite period because the term of imprisonment was in excess of 30 months by virtue of the notification periods applying to different categories of offender in terms of section 82 of the Sexual Offences Act 2003. The appellant appealed against the sentence imposed the sole issue being the length of the notification period to which the appellant was subject under and in terms of the 2003 Act. On behalf of the appellant it was submitted that only charges 6 and 8 attracted the notification requirements as offences under section 6 of the 2009 Act as listed in schedule 3 to the 2003 Act as being a sexual offence for the purposes of Part 2 of the 2003 Act. None of the remaining charges on the indictment were listed in the schedule so they did not attract the notification requirements. Section 80 of the 2003 Act is automatic and not dependent on any statement made by the sentencing court. It was submitted on behalf of the appellant that the sheriff had intended to sentence the appellant to a period of less than 30 months in respect of the two sexual offences resulting in the applicable notification period being one of 10 years because of the terms of section 82 of the 2003 Act and not for the indefinite period which he was made the subject of. The sentencing Sheriff reported to the court that she accepted she had erred in imposing a single cumulo sentence and that she ought to have imposed individual sentences in respect of the sexual offences to ensure the appropriate notification period was imposed. In a supplementary report the sentencing Sheriff stated that she would have imposed, following discount, a sentence of 21½ months in cumulo for the non-sexual offences and separately sentences, following discounts, of 4½ months and 6 months consecutively for the two sexual offences making a total of 10½ months for the sexual offences and 32 months in total if the sentences on the sexual offences ran consecutively to the cumulo sentence on the three non-sexual offences. Here the court allowed the appeal. The court noted that had the sentencing Sheriff imposed the sentences referred to in her supplementary report section 82 would have operated differently and the notification period would have been calculated as if the appellant had been sentenced to a term of imprisonment of 10½ months and as that is a sentence of more than 6 months but less than 30 months the notification period would have been one of 10 years and not for an indefinite period. Here the court quashed the single cumulo sentence and in relation to the non-sexual charges (charges  3, 4 and 10) imposed a sentence of 21 ½ months cumulo and in relation to the sexual offences (charges 6 and 8) imposed 4 ½ months on charge 6 and 6 months on charge 8 to run consecutively to each other which sentences were ordered to run consecutively to the sentence imposed on charges 3, 4 and 10 and made the appellant subject to the notification requirements for a period of 10 years rather than for an indefinite period.