Factual and Procedural Background
The Crown appealed against a 14-month cumulative sentence imposed by the sheriff at the sheriff court on two charges, arguing that it was unduly lenient and that the sheriff wrongly declined to impose non-harassment orders. [1]
The Respondent was convicted of prolonged assaults against Child A, beginning when Child A was approximately three years old, and assaults against Child B, including repeated strangulation and restriction of breathing to the danger of life. He was also convicted of three unchallenged charges involving neglect and sexual-image offences. [2][3][4][5][6]
The Respondent was a first offender, aged 42 at sentence, and had generally been employed. A social-work assessment placed him at medium risk of further violent and sexual offending and stated that he could not safely be managed in the community until he accepted responsibility for his conduct. [7][8][9][10]
The Appeal Court considered the Crown appeal and, on 28 August 2026, re-sentenced the Respondent and imposed non-harassment orders. [11][12][13][14]
Legal Issues Presented
- Whether the sentence imposed on the challenged charges was unduly lenient and, if so, whether a different sentence should be imposed. [15][16][17][18]
- Whether the sheriff had erred in declining to impose non-harassment orders, including by treating the application as too late. [19][20][12]
- What sentence appropriately reflected the seriousness, duration, aggravating features and harm arising from the offending. [21][22][23]
Arguments of the Parties
Appellant's Arguments
- The sentence underestimated offending lasting approximately 15 to 16 years against Child A and more than two years against Child B, including two incidents of manual strangulation involving danger to life. [24][25]
- The sentence failed sufficiently to reflect the harm, potential for serious harm, breach of parental trust, vulnerability and ages of the children, repeated head assaults, and deterrence from reporting. [24][25][26]
- The sheriff should have imposed individual sentences on the two challenged charges. [24]
- The sheriff retained power to hear the non-harassment-order application after sentence had been pronounced; alternatively, the procedural failure could be excused under section 300A of the Criminal Procedure (Scotland) Act 1995. [20][27][28][29][30][31]
- Non-harassment orders should be imposed for an indefinite period in respect of Child A and for five years in respect of Child B, reflecting their stated wishes for protection. [32]
Respondent's Arguments
- The sheriff had heard the evidence and her assessment should be respected. Even if she made errors, the sentence was not shown to be outside the reasonable range and therefore was not unduly lenient. [33]
- The sheriff had recognised the seriousness of the offending, the absence of previous convictions and other mitigation, including employment and caring responsibilities. [34][35]
- Although strangulation was accepted to be serious and highly aggravating, its evaluation remained a matter for the sheriff who had heard the evidence. [33]
- The Respondent accepted that non-harassment orders were appropriate and did not oppose the durations proposed by the Crown. [36]
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HM Advocate v Bell 1995 SCCR 244 | Deference to the trial judge in an undue-leniency appeal. | The Court applied the principle but found that the sheriff had not fully used her first-instance advantages. [33][15][37] |
| HM Advocate v Fergusson [2024] HCJAC 22, 2024 JC 376 | Sentencing approach referred to in relation to individual charges and proportionality. | The Court followed the relevant advice only for the challenged charges. [33][38][13] |
| HM Advocate v McMahon and Lambert [2025] HCJAC 34, 2026 JC 1 | Choking is seriously dangerous and highly aggravating. | The Court adopted the principle that choking carries a considerable risk of serious harm or death. [39][40][41] |
| HM Advocate v MacDonald [2025] HCJAC 52, 2026 JC 102 | Repeated strangulation can justify a substantial custodial sentence. | The Court relied on the need for appropriate penalties where strangulation could have caused death. [39][42][43][44] |
| R v Cook [2023] EWCA Crim 452, [2023] 4 WLR 71 | Strangulation creates a real fear of death and inherent harm. | The Court adopted the reasoning in assessing the seriousness of neck compression. [39][45][46] |
| R v Allen [2020] NICA 25 | Strangulation is dangerous, controlling, potentially fatal and may cause physical and psychological injury despite limited visible injury. | The Court expressly adopted and endorsed the analysis and treated strangulation as a substantial aggravating factor. [47][48][49] |
| HM Advocate v O'Donnell 1995 SCCR 745 | Sentences may be increased to mark gravity, punishment and deterrence. | The principles supported imposing a different sentence. [50] |
| HM Advocate v Davidson 1999 SCCR 729 | Sentencing may be increased to express society's condemnation. | The principle informed the Court's sentencing objectives. [50] |
| HM Advocate v JT 2005 1 JC 86 | Repetition is an aggravating feature and increased punishment may be justified. | The Court considered repetition and the need to mark the gravity of the offending. [50][51] |
| Kirkup v HM Advocate [2025] HCJAC 9, 2025 JC 135 | Choking, strangling and neck compression are serious conduct frequently posing potential danger to life; consent is no defence to assault. | The Court restated and applied these principles to the Respondent's conduct. [52][53] |
| Kirkup v HM Advocate [2026] HCJAC 11, 2026 SCCR 240 | Duration of offending and throat compression restricting breathing are materially serious considerations. | The Court treated duration and neck compression as significant features. [54] |
| HM Advocate v TJ [2023] HCJAC 23, 2024 JC 1 | Unsuccessful Crown appeals do not provide sentencing benchmarks and require caution. | The principle was noted in relation to an earlier unsuccessful appeal. [55] |
| HM Advocate v MacGregor [2025] HCJAC 28, 2025 JC 358 | Unsuccessful Crown appeals are not benchmarks; repetition is an aggravating factor. | The Court cited it on the treatment of repetition and caution concerning appeal outcomes. [56][51] |
| Walker v HM Advocate 1987 SCCR 345 | Assaulting a child is an aggravating circumstance warranting severe punishment. | The Court applied the principle to the Respondent's assaults on children. [57][44] |
| HM Advocate v Boyle [2009] HCJAC 89, 2010 JC 66 | The youth of a child victim increases culpability and punishment. | The Court relied on the heightened vulnerability of child victims. [58] |
| HM Advocate v Cooperwhite [2013] HCJAC 88, 2013 SLT 975 | Repetition is an aggravating factor. | The Court cited it in explaining how to avoid double counting repetition. [51] |
| Stephen v HM Advocate, unreported, 17 November 2015 | Danger-to-life aggravations involving neck compression supported five years' imprisonment. | The Crown relied on the case as a sentencing comparison. [59][60] |
| HM Advocate v CJB [2019] HCJAC 45 | Domestic assaults involving neck seizure did not justify custody on the facts of that unsuccessful Crown appeal. | The case was treated cautiously and was not regarded as a benchmark. [61][55][56] |
| Forsyth v PF Paisley, unreported, 16 June 2021 | A single non-fatal strangulation supported ten months' custody. | The Crown relied on it as a sentencing comparison. [62][63] |
| Patyk v HM Advocate, unreported, 1 March 2022 | Serious strangulation involving danger to life resulted in a substantial custodial sentence. | The Crown relied on it as a sentencing comparison. [64][65] |
| Stuart Birtley v HM Advocate, unreported, 27 September 2022 | A single incident with immediate acceptance of responsibility resulted in a community sentence on appeal. | The factual mitigation distinguished it from the present case. [66][67] |
| O'Donnell v HM Advocate, unreported, 25 March 2025 | A community sentence was substituted where there was substantial mitigation and no danger-to-life aggravation. | The Crown relied on the case, but its facts differed from the present offending. [68][69] |
| Neill v HM Advocate, unreported, 5 August 1998, GWD 1998 32-1586 | Thirty months' imprisonment was not excessive for assault involving loss of consciousness from neck compression. | The case formed part of the sentencing material considered. [70][71] |
Court's Reasoning and Analysis
The governing test was whether the sentence fell outside the range that a first-instance judge, properly considering all relevant factors, could reasonably have regarded as appropriate. The appeal court was not entitled to intervene merely because it would have imposed a heavier sentence. [15][16]
The sheriff had made errors in reporting the evidence, including reliance on deleted averments and omission of significant conduct and consequences. Consequently, she had not fully benefited from her first-instance advantages. [37]
The Court regarded the neck-seizure and repeated strangulation of Child B, including restriction of breathing to the danger of life, as conspicuously serious. It reaffirmed that choking, strangling and neck compression are inherently dangerous, serious crimes and materially aggravating features. [52][72][73][43][49][74]
The offending was aggravated by its prolonged duration, repeated assaults, assaults to the head, the children's ages and vulnerability, the parental breach of trust, the presence of another child, and the Respondent's discouragement of reporting. The Court cautioned against double counting but treated the duration and repetition as properly relevant to harm and culpability in the circumstances. [21][75][76][77][22]
The Court rejected concurrent treatment merely because the victims lived in the same household. There were two victims, with correspondingly greater culpability and harm, including potential harm. [78][79]
Balancing the aggravating features against the limited mitigation, principally the absence of previous convictions, the Court concluded that the original sentence was unduly lenient and that a longer sentence was required for public protection, condemnation, deterrence, punishment and to mark the gravity of the offending. [18][80][21][23]
Regarding non-harassment orders, the Court considered that the sheriff likely retained power to hear the application after sentence had been pronounced. In any event, the prosecutor's failure to apply earlier was a mistake or oversight that could have been considered under section 300A, subject to fairness and an opportunity for the Respondent to make representations. [81][82][28][29][30][31][83]
The Court was satisfied on the balance of probabilities that orders were appropriate to protect Child A and Child B from harassment. [84]
Holding and Implications
APPEAL ALLOWED IN RELATION TO SENTENCE AND NON-HARASSMENT ORDERS. The Court held that the original sentence on the challenged charges was unduly lenient. It substituted, in cumulo, five years and six months' imprisonment, comprising intended sentences of two years on the first challenged charge and five years on the second, adjusted for proportionality. The sentences on the other charges remained concurrent, and all sentences commenced on 23 February 2026. [23][13][14]
The Court imposed a non-harassment order prohibiting contact or attempted contact with Child A indefinitely and with Child B for five years. [84][85]
The decision emphasises that Scottish courts must recognise the extreme danger and aggravating significance of choking, strangulation and neck compression, particularly where children are victims. [86][80]