His Majesty’s Advocate v. Alistair Duncan Fergusson [2024] HCJAC 22

Note of appeal against sentence:-On 15 November 2023, following a trial at Aberdeen High Court, the respondent was convicted of 16 sexual offences perpetrated against 4 complainers two of whom were his former partners and two were the daughters of one of his former partner’s. On 30 January 2024, following the obtaining of a Criminal Justice Social Work Report, the sentencing judge imposed the following sentences:- (a) 2 years imprisonment in cumulo on charges 1 to 4 which group of offences included several attempted rapes perpetrated against TA; (b) on the common law offences against NB (charges 7 – 10) and the rape charges (12 and 13) he selected 8 years imprisonment, with a concurrent 1 year on the statutory lewd practices charge (11) which mirrored, for behaviour when she was over 12 years of age, that when NB was under that age (the judge did not indicate whether the 8 year sentence of imprisonment was consecutive or concurrent with the 2 year sentence of imprisonment); (c) concurrent sentences of 1 year imprisonment in respect of the two convictions involving SB under section 6 of the 1995 Act (charges 16 and 17) to run concurrently with the 8 year sentence of imprisonment involving NB (the judge stated that all of the sentences involving NB and SB were to run consecutively to those involving TA); and (d) consecutive 4 year term for the fourth group of charges involving SS, resulting in an extended sentence of 18 years comprising of a custodial element of 14 years with an extension period of 4 years. No sentence was imposed (in error) in relation to charge 14. The Crown appealed against the sentence imposed it being contended that the sentences selected were unduly lenient and criticisms were also made in relation to how the extended sentence was expressed in light of the various concurrent and consecutive sentences which were selected. On behalf of the Crown I was submitted that, having regard to what was said in HMA v Bell 1995 SCCR 244, the sentences imposed fell outwith the range of sentences which could reasonably have been considered appropriate and the judge had failed to properly assess the seriousness of the offences with reference to culpability and harm, failed to identify the sentencing range, aggravating and mitigating factors and determine the headline sentence. It was further submitted that the imposition of the extended sentence was incompetent if the intention was that an extension period was attached to a series of separate determinate sentences, however, it was not clear what the sentencing judge’s intention was. There were errors in the Minutes which required correcting for the sentence to be properly understood. It was further submitted that if cumulative sentences were to be imposed then the sentence ought to have indicated what sentences would have been imposed. In addition, whilst consecutive sentences for groups of charges could competently be imposed in the present case it had led to difficulties as examination of the sentences for each group of charges disclosed that the judge was forced to select derisory periods in order to reach a figure of 14 years as the appropriate overall custodial sentence and then added an extension period of 4 years. It was submitted that a single cumulative sentence ought to have been imposed to adequately reflect the scale of the criminality. On behalf of the respondent it was conceded that the way in which the sentencing judge imposed separate sentences had created problems and a perception that he had failed to recognise the serious nature of the offending on some charges, however, the overall sentence imposed was not unduly lenient and fell within the range of reasonable sentences. Here the court highlighted a number of aspects of the approach of the sentencing judge which were wrong, however, the court considered that an extended sentence of 18 years comprising of a custodial element of 14 years and an extension period of 4 years was not unduly lenient. The court did, however, note that the component parts of that extended sentence ought to have been expressed by the imposition of 4 years cumulative on charges 1 to 4; 10 years cumulative on charges 7 to 10 and 12 to 14; 1 year cumulative on charges 11, 16 and 17; and 6 years cumulative on charges 19 and 21. The court considered that had these sentences been made to run consecutive to each other, the result would have been an excessive custodial term of 21 years which would be reduced by one third to reach a fair and proportionate sentence overall.