The ‘significant sexual aspect to the offender’s behaviour’ in this case

‘Sexual’

[15] On the facts established at the trial I was in no doubt that the appellant’s behaviour could only be described as ‘sexual’. Other than deviant sexual gratification, I can think of no reason for a man pointing a camera repeatedly between a sleeping young woman’s legs, up her skirt and towards her genitalia, taking four video clips in the process. No other reason was advanced in the trial or in submissions before me.

‘Significant’

[16] In Hay [4]Lord Gill commented on the meaning of ‘significant’ in these terms:

‘In my opinion it would be futile to attempt to define the word “significant” as it is used in paragraph 60. That is a question best left to the judgement of the sentencer. Since the purpose of registration is to protect the public against a perceived danger, the question whether a sexual aspect of the accused’s behaviour was significant should be assessed in that light. One way to approach that is to consider whether the sexual aspect is important enough to merit attention as indicating an underlying sexual disorder or deviance from which society is entitled to be protected (Wylie v M 2009 SLT (Sh Ct) 19, Sheriff Pyle at [13])…’

[17] Given that to ‘signify’ means, inter alia, ‘be of importance or consequence’, ‘be a sign or symbol of’, or ‘denote,’[5] I respectfully adopted the approach taken by (the then) Sheriff Pyle in Wylie v M[6], and now approved in Hay v HM Advocate[7]. I determined from the appellant’s behaviour that the sexual aspect was certainly important in that it indicated an underlying sexual deviance or disorder from which members of society, and young women in particular, were entitled to be protected. That determination was made on the basis of my conclusions concerning the evidence led at the trial. Moreover the appellant’s persistence in the presence of other passengers suggested to me a worrying boldness or deviant sexual urges of sufficient strength to overcome his self-restraint in the presence of others. Such behaviour is particularly perturbing in the case of the appellant who, because of his poor eyesight, relies on public transport and is therefore likely to be in close proximity to young women frequently in future. It follows that I do not accept the appellant’s proposition to the effect that there was ‘no evidence that the notification requirement was necessary to protect the public.’

[18] As to the imposition of a fine, I have set out my reasons above. If the appellant’s suggestion is that imposition of notification requirements is incompatible with imposition of a fine, I do not accept that proposition. The table in section 82(1) of the Sexual Offences Act 2003 specifies the registration periods in respect of various periods of imprisonment, etc. The registration period for ‘a person of any other description’ is 5 years. Thus there is no restriction, actual or implicit, on imposing registration requirements in a case in which a fine has been imposed.

[19] In the ground of appeal no specification is given of the part or parts of the social enquiry report upon which the appellant seeks to rely. Clearly I disagreed with the suggestion that the appellant, having denied commission of the crime, might be put on probation with a condition of engagement in ‘offence related work.’[8]

[20] In any event, as noted above, it is plain from the opinions in Hay v HM Advocate[9] that the sentencer must decide for himself whether the facts disclose a significant sexual aspect and he must not have regard to any view on the matter that may be expressed in a social enquiry report. The sentencer must make a judgement only on the accused’s behaviour on the occasion libelled. That, as it happens, is what I did.

Date: 2015-12-11; view: 1054