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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.
For more information about how judges decide sentences; what sentences are available; and matters such as temporary release, see the independent Scottish Sentencing Council website.
Read more about victims of crime and sentencing.
HMA v Damien McCann
Mar 24, 2021
She set the punishment part at 10 years and 6 months and an extended period on licence at 3 years.
On sentencing Lady Scott made the following statement in court:
“You have pleaded guilty to a number of serious charges of child sexual abuse.
In charge 5 the most serious charge you repeatedly raped and sexually abused a child from about the age of 10 years over a period between May 2016 and January 2019. Child rape is always an extremely serious offence and here I consider there are factors which rendered your conduct even worse. First it involves an utterly gross abuse of trust. It is difficult to envisage the degree of damage you have caused to your victim.
Secondly for your ongoing sexual gratification you videoed these rapes and sexual abuse. Over 20 recordings of these videos were recovered which gives some indication of the scale of your abuse. The videos are planned and graphic. The various recordings last between 2 to 5 minutes.
Charges 6 and 7 involve the making of these recordings and their possession, along with a handful of other indecent images of children.
Charge 8 concerns your distribution of the recordings making alterations with video shows, taking stills and creating musical soundtrack and titles. You shared these images with your partner.
In charge 9 you were found to have a large number of videos and images of extreme pornography of a serious nature largely of bestiality.
Charge 10 involves your assault of a 6 month old baby by placing your naked erect penis beside her face with photographs being taken.
You are a 35 year old man. You have no prior sexual offending but your criminal record includes violent assaults. You have committed these and prior offences at a time when you were under supervision orders in the community.
The background Criminal Justice and Social Work (CJSW) report is negative. It identifies factors in your attitude which raise concern – such as the predominance of your desire for your own sexual gratification and for example that you told the police that the child looked happy when your raped her. I accept you now appear to accept responsibility. Finally you are assessed as presenting a high risk of sexual re-offending.
On the other hand I take into account you had a physically abusive and neglected childhood. That you more recently had poor mental health with anxiety and depression and remain on medication. I take into account that you said you were sorry to the police and you have pleaded guilty at the first preliminary hearing.
I am not satisfied that it is appropriate to order further risk assessment with a view to an order for lifelong restriction but I am certainly satisfied you present a serious risk of serious sexual harm and that an extended sentence is appropriate for the protection of the public. An extended sentence consists of the appropriate term of imprisonment and an extension period whereby your release on licence is extended for that period. The effect is that, if, during that period, if you breach the conditions of your licence, your licence may be revoked and you may be recalled to prison by the Scottish Ministers, with or without consultation with the Parole Board.
This extended sentence should take into account the factors identified in the CJSW report which related to programmes and supervision which can be undertaken.
It is appropriate I indicate what sentence I would have imposed on the charges if I had been dealing with them individually and in isolation, prior to any discount. In charge 5 a sentence of 13 years; in charge 8 a sentence of 4 years; in charge 9 a sentence of 2 years and in charge 10 a sentence of 10 months. In charges 6 and 7 I would have admonished given the overlap with charge 5 here.
I have decided here it is appropriate to impose an extended sentence with a cumulo period of custody in respect of all the charges except charge 6 and 7.
I sentence you to a total extended sentence of 13 years and 6 months years which consists of a period in custody of 10 years and 6 months reduced from 14 years to reflect your early plea and an extended period on licence of 3 years. This sentence will be backdated to 1 February 2019.”
24 March 2021