APPEAL AGAINST SENTENCE BY KIERAN MALCOLMSON AGAINST HER MAJESTY'S ADVOCATE

Factual and Procedural Background

The Appellant, a secondary school teacher in the Shetland Islands, was convicted after trial of two sexual offences involving female pupils under the age of 18, in breach of statutory provisions relating to persons in positions of trust. The first offence occurred in 2009 involving sexual activities including kissing, digital vaginal penetration, and penile oral penetration with a 17-year-old victim. The second offence took place in 2018 involving kissing and attempts to isolate a 16-year-old victim. At the time of the offences, the Appellant was intoxicated. The Sheriff sentenced the Appellant to 15 months imprisonment for the first offence and a concurrent 6 months for the second. The Appellant appealed against the sentence imposed.

Legal Issues Presented

1. Whether a custodial sentence was appropriate for the offences committed by the Appellant.
2. Whether the length of the custodial sentence imposed was excessive.

Arguments of the Parties

Appellant's Arguments

• A custodial sentence was inappropriate given the circumstances.
• The offences were impulsive and committed under the influence of alcohol without grooming.
• The age gap between the Appellant and the first victim was not significant.
• The second offence was significantly less serious than the first.
• The Appellant had no previous convictions and was assessed as low risk of reoffending.
• The impact on the victims was not significant.
• Reference to English sentencing guidelines suggested non-custodial disposal was appropriate.
• The 15-month custodial sentence was excessive.

Respondent's Arguments

• The legislation aims to protect young people from sexual exploitation by persons in positions of trust.
• Consent is immaterial to the offence and lack of consent is an aggravating factor.
• The offences involved serious breaches of trust and some degree of premeditation.
• Voluntary intoxication of the offender is an aggravating factor.
• English sentencing guidelines and precedents supported a custodial sentence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the facts and legal principles by first recognizing the serious breach of trust involved in the offences committed by the Appellant, a teacher engaging in sexual activity with pupils under 18. The court noted the statutory purpose of protecting young persons from exploitation by those in positions of trust, emphasizing that consent is immaterial and lack of consent aggravates culpability. The court accepted the Sheriff’s assessment that the offences were not random but involved premeditation, particularly the Appellant’s efforts to be alone with the victims.

The court considered the Appellant’s intoxication as an aggravating factor consistent with sentencing guidelines from Scotland and England and Wales. It also noted the Appellant’s lack of remorse and failure to admit guilt, distinguishing this case from some English precedents cited by the Appellant. While recognizing mitigating factors such as absence of grooming, the relatively small age gap in the first offence, and the Appellant’s previous good character, the court concluded that a custodial sentence was necessary given the gravity of the offences.

In comparing similar English cases, the court found the sentence imposed was broadly in line with sentences for offences of comparable seriousness, but the length of the sentence was excessive. Taking all aggravating and mitigating factors into account, the court determined a reduced custodial term was appropriate.

Holding and Implications

The court QUASHED the sentences imposed by the Sheriff and substituted a single cumulo sentence of 12 months' imprisonment.

The direct effect is a reduction in the custodial sentence length. No new legal precedent was established; the decision reaffirms the seriousness of offences involving abuse of trust and the inapplicability of consent as a mitigating factor in such cases. The ruling underscores the importance of custodial sentences in protecting vulnerable young persons from sexual exploitation by trusted adults, while calibrating sentence length to the specific facts and comparable case law.