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When deciding a sentence, a judge must deal with the offence that the offender has been convicted of, taking into account the unique circumstances of each particular case. The judge will carefully consider the facts that are presented to the Court by both the prosecution and by the defence.
Read more about victims of crime and sentencing.
HMA v James Whitton Kerr
Jul 13, 2020
On sentencing, Lord Matthews made the following statement in Court:
“You have pleaded guilty to a catalogue of sexual abuse and violent offending involving three young children and two partners. The details of the offences were set out in the narrative which was read out in Court and I need not repeat them at length here.
I have considered the circumstances of the offences and everything said by your Counsel as well as the terms of a Criminal Justice Social Work report and a Risk Assessment Report. As I indicated already, I have decided that it would be sufficient to impose an extended sentence in your case, rather than an Order for Lifelong Restriction. I will explain later what the extended sentence entails.
Charges 1 to 3 occurred when you were a child yourself, aged from about 13 to 15 or 16. For that reason the sentences will not be the same as would have been meted out to an adult.
Furthermore, it is clear that you suffered significantly from adverse childhood experiences, the details of which again I need not repeat. These are particularly relevant to the offences you committed as a child. The offences involved telling a young boy aged between 7 and 9 to take your penis in his mouth, digitally penetrating a young girl aged between 10 and 11 on 3 or 4 occasions and then raping her on at least 6 or 7 occasions. The effect on her is clear from her victim impact statement. Given your very young age at the time and the mitigating circumstances the sentences for these offences in cumulo would have been imprisonment for 4 years, before taking account of the timing of your plea. It will now be imprisonment for 3 years because of the plea. I cannot pass an extended sentence in relation to these charges because of when the offences were committed.
Charge 5 involved assaulting your then partner on various occasions throughout a period of over 10 years from 28 June 1998 till 31 December 2008, all to her severe injury, including a broken nose. I would have imposed a consecutive sentence of imprisonment for 3 years for that offence, before taking account of your plea. It will now be one of imprisonment for 2 years and 3 months to run consecutively to charges 1, 2 and 3. The headline sentence would have been imprisonment for 4 years but for the fact that the total sentences would have been excessive.
Charge 10 involved assaulting your then partner to her injury on more than 20 occasions over a period of more than 9 years between 1 January 2010 and 5 April 2019. The sentence on that charge would have been ordered to run consecutively to the sentences on charges 1, 2, 3 and 5 and would have been one of 3 years imprisonment before taking account of the plea. Given the timing of your plea it will now also be one of imprisonment for 2 years and 3 months and since the total of the sentences would have been excessive I order that sentence to run concurrently.
Charges 7, 8 and 9 involved an appalling course of conduct, the repeated rape of a young girl between the ages of 5 and 15. In relation to these charges, in cumulo, I propose to pass an extended sentence which will run consecutively to the sentences I have already imposed. I am satisfied that the ordinary conditions of release will be insufficient to protect the public from serious harm from you but I hope that you will take the opportunities this sentence will give you to address the issues which have contributed to your offending. The sentence will be in two parts, a custodial element and an extension period after your release from custody, during which you will be subject to a licence, the conditions of which will be set by the Scottish Ministers. Breach of any of these conditions will make you liable to be recalled to serve out the whole of the sentence in custody.
The custodial element but for your plea would have been one of 11 years. Given the plea it will be reduced to one of 8 years and 3 months. The extension period will be one of 6 years.
Charge 14 was a charge of breaking your bail conditions by contacting and communicating with the complainer. Indeed you were found in her company. You offered to plead guilty to that offence by Section 76 letter. The sentence would have been imprisonment for 6 months with 3 months attributable to the bail aggravation but for your plea. As it is, it will be one of imprisonment for 4 months with 2 of those attributable to that aggravation. There is no component of the sentence attributable to the aggravation that it involved abuse of your partner. There seems to be no suggestion of abuse attached to that offence per se. The sentence will run concurrently with the others.
Charge 15 is another charge of assault of the same partner mentioned in charges 10 and 14. It relates to one occasion when, amongst other things, you struck her on the head with a bottle about 5 times and the assault resulted in bruising to her wrist, cheek, chest and back, a swollen and bruised nose and blood haemorrhaging in her right eye. Had this offence stood on its own I would have imposed a sentence of imprisonment for 2 years, including 3 months for each of the bail and partner abuse aggravations, before taking account of your plea. Given that plea, the sentence will be one of imprisonment for 18 months, including 2 months for each aggravation. It will run concurrently with the other sentences.
All this means it that the total period of custody for which you have been imprisoned is 13 years and 6 months and the extension period is one of 6 years.
The sentences will run from 9 April 2019.
I also have to tell you that you will be subject to the notification provisions of the Sexual Offences Act 2003, the so-called sex offenders register, for an indefinite period.
Given the length of the sentences I do not consider that the making of a Non-harassment Order is necessary.”
10 July 2020