NOTE OF APPEAL AGAINST SENTENCE BY HMA AGAINST ALISTAIR DUNCAN FERGUSSON

Factual and Procedural Background

This Crown appeal concerns the sentencing imposed on the Respondent following convictions for multiple sexual offences involving four different complainers over an extended period. The offences included indecent assaults, sexual assaults, and rape, committed against the Respondent's former partners and their daughters. The sentencing judge imposed a series of concurrent and consecutive custodial terms and an extended sentence, but the precise nature and aggregation of these sentences were unclear and problematic. The Crown appealed on the basis that the sentences were unduly lenient and that the extended sentence was improperly structured.

Legal Issues Presented

1. Whether the sentences imposed by the trial judge were unduly lenient.
2. The proper nature and expression of an extended sentence when multiple concurrent and consecutive custodial terms are imposed.
3. The appropriateness of cumulative versus consecutive sentencing in cases involving multiple offences against different complainers.
4. The correctness of the trial judge’s approach to sentencing in light of relevant sentencing principles and precedent.

Arguments of the Parties

Appellant's Arguments

• The sentences imposed by the trial judge fell outside the range of reasonable sentencing options and were thus unduly lenient.
• The judge failed to properly apply the Scottish Sentencing Council’s Principles and Purposes of Sentencing, particularly regarding public protection, punishment, and expression of disapproval.
• Sentencing guidelines and precedents suggested higher custodial terms for each group of offences, including references to English sentencing guidelines as cross-checks.
• The imposition of an extended sentence was incompetent because it appeared to attach extension periods to multiple separate determinate sentences rather than a single aggregate custodial term.
• The judge failed to clearly state the sentences he would have imposed had the offences or groups of offences stood alone, contrary to established case law.
• The judge’s approach led to derisory individual sentences to fit an overall custodial term, creating confusion and undermining clarity and proportionality.

Respondent's Arguments

• The division of offences into groups and the resulting sentences created difficulties and a perception of leniency on some charges.
• Despite these difficulties, the overall sentence was within the range of reasonableness and therefore not unduly lenient.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Laird v HM Advocate 2015 SCCR 434	Guidance on sentencing sexual offences and the use of extended sentences.	The trial judge referred to this case in selecting the total custodial term and extension period.
S v HM Advocate [1999] GWD 40-1930	Principles on sentencing and extended sentences.	Considered by the trial judge in sentencing decisions.
HM Advocate v Bell 1995 SCCR 244	Standards for assessing whether a sentence is unduly lenient.	Used by the appellant to argue the sentences were outside reasonable range.
HM Advocate v AB 2016 SCCR 47	Application of sentencing guidelines, including cross-checks with English guidelines.	Referenced to support appropriate sentence ranges.
HM Advocate v CB 2023 JC 59	Guidance on sentencing for sexual offences involving children.	Used to argue for higher sentences on second and third groups of charges.
DS v HM Advocate 2017 SCCR 129	Proper form and application of extended sentences.	Clarified that extended sentences must be a single aggregate custodial term plus an extension period, not multiple extended sentences added together.
McDade v HM Advocate 1997 SCCR 52	Requirement for judges to state what sentences would have been imposed if offences stood alone when imposing cumulative sentences.	The court found the trial judge failed to comply with this principle.
HM Advocate v RM 2024 JC 81	Permissibility of consecutive sentences for groups of charges and the need to avoid derisory individual sentences.	Reinforced the need for clarity and proportionality in cumulative sentencing.
R v Wilding [2019] 2 Cr App R (S) 37	Endorsement of cumulative sentencing to reflect totality of offending.	Supported the principle that cumulative sentences may exceed maximums on individual charges if justified.
Wann v MacMillan 1957 JC 20	Permissibility of cumulative sentences exceeding individual maxima.	Referenced to support cumulative sentencing approach.
Maguiness v MacDonald 1953 JC 31	Similar principle on cumulative sentencing exceeding maxima.	Referenced in reasoning on cumulative sentencing.
Miller v HM Advocate 2014 SCCR 147	Competency of extended sentences exceeding statutory maxima in solemn proceedings.	Supported the court’s view that extended sentences can exceed statutory maxima if properly structured.
McCluskey v HM Advocate 2013 JC 107	Similar to Miller on extended sentences and Orders for Lifelong Restriction.	Used to support proper extended sentencing methodology.
Mitchell v HM Advocate 2024 SCCR 131	Recent authority on extended sentences and cumulative sentencing.	Reinforced principles on extended sentencing and cumulative terms.

Court's Reasoning and Analysis

The court analysed the sentencing approach taken by the trial judge, identifying significant errors in both the structure and clarity of the sentences imposed. The judge failed to clearly state whether sentences were to run concurrently or consecutively in some instances, and did not specify the custodial term to which the extension period applied. The court emphasised that an extended sentence must be a single aggregate custodial term plus an extension period for public protection, not multiple separate extended sentences added together.

The judge’s method of imposing an extended sentence by aggregating multiple determinate sentences and then adding an extension period was found to be legally flawed, contrary to the statutory scheme and case law. The court highlighted the importance of clarity and transparency in sentencing, especially when multiple offences and complainers are involved, referencing the Scottish Sentencing Council’s guidance and relevant case law.

While recognising the errors, the court acknowledged that the trial judge was in a better position to assess the gravity of the offending and that, despite the flaws, the overall extended sentence of 18 years with a 14-year custodial term was not unduly lenient. The court further explained that a cumulative sentence reflecting the totality of offending, with properly explained component parts, is often the only fair and proportionate sentencing option in cases of prolonged sexual offending.

Holding and Implications

The court UPHELD the extended sentence of 18 years (14 years custodial) imposed by the trial judge.

The court confirmed that although the sentencing judge made errors in the explanation and structuring of the sentences, the overall sentence was within a reasonable range and not unduly lenient. The decision clarifies the necessity for sentencing judges to provide clear, unambiguous explanations of cumulative and extended sentences, including specifying what sentences would have been imposed had offences stood alone. This case underscores the importance of adherence to statutory requirements and sentencing principles when imposing extended sentences involving multiple offences.