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HMA V Derek McNeill
Nov 10, 2021
Lord Weir set the punishment part of the sentence at four years’ imprisonment. This period represents the minimum period which the offender must serve in prison before the Parole Board can consider the case.
On sentencing, Lord Weir made the following statement in Court:
“Derek McNeill, you were found guilty after trial of charges 1 and 3 on this indictment, charge 2 having been withdrawn at the close of the Crown case. I will deal with charge 3 separately at the end these sentencing remarks. Charge 1, to which I now address myself, libelled a contravention of section 12 of the Children and Young Persons (Scotland) Act 1937, which is a charge of cruelty to a child under the age of sixteen. Even that description of the statutory offence belies the deplorable context and circumstances in which it was committed.
He was a vulnerable young teenager who suffered from type 1 diabetes. He received a range of support not only from the staff at his place of residence but also from medical staff at the Royal Hospital for Sick Children in Edinburgh who were responsible for his diabetic care. In the afternoon of Saturday 11 February 2017 he left the support unit where he stayed. Late that night he was approached by you in the Wester Hailes area, where it appears he remained until the following Monday when CCTV captured you putting him on a bus at the Westside Plaza. The admirable efforts thereafter of the staff of Lothian Buses and the emergency services to look after him, and to obtain the medical assistance he so urgently required, stand in depressingly marked contrast to the neglect and abuse to which you subjected him over what turned out to be the last two days of his short life.
How it was that you caused him to accompany you to your flat, alone, bereft of his medication in the hours of darkness, and what happened over the two days and nights he was with you, only you can say for certain. By its verdict, however, it is clear that the jury were satisfied that you were aware of his runaway status, age and vulnerability; that the condition of your flat was wholly unfit to accommodate anyone with his vulnerabilities; that there was no objective justification for you, a total stranger many years his senior, to have taken him home with you; that you would have become aware of his deteriorating medical condition over the time when he was in your company; that you must have engaged in sexual activity in his presence which involved the ejaculation of your own semen; that you did nothing to alert the authorities to his whereabouts or seek medical attention for him, and that you left him on a bus at the Westside Plaza to fend for himself when his seriously deteriorating medical condition would have been apparent.
From the report that has been prepared for the purposes of today’s hearing it is clear that you present a very high risk of causing sexual harm to children, and that the public must be afforded protection from you. The nature and circumstances of the crime you were found to have committed, coupled with your record, the many risk factors identified, and the lack of any discernible protective factors, are such as to satisfy me that there is a likelihood that, if at liberty, you will seriously endanger the lives, or the physical or psychological well-being, of members of the public at large. Accordingly, in respect of charge 1 on the indictment, I am satisfied that the requirements for an order for lifelong restriction are met. This disposal constitutes a sentence of imprisonment for an indeterminate period. It means that you will only be released from prison into the community if the Parole Board can be satisfied that public safety will not be endangered were that to happen.
For the purposes of retribution and deterrence I am required to set the punishment part of your sentence. This period represents the minimum period which you must serve in prison before the Parole Board can even consider your case. In fixing the length of the punishment part of the sentence I am required by law to start by considering what would have been the appropriate determinate sentence for this offence, ignoring the period of confinement necessary for the protection of the public.
Parliament has prescribed that the maximum sentence for an offence under section 12 of the 1937 Act is one of ten years. I regard the circumstances of the present case as being so serious that, if I had been imposing a determinate sentence after trial, I would have imposed the statutory maximum sentence prescribed by Parliament. The public protection element of that sentence would have been two years, thereby reducing the custodial term to one of 8 years’ imprisonment. I have then to apply a reduction to that period to take account of the rules for early release, which means that the punishment part of your sentence is one of four years. That sentence will be backdated to 20 November 2019, being the date of your first appearance on petition.
But I must make it clear to you that this does not mean that you will be released automatically at the end of that four year period; it simply means that until that period has elapsed you cannot ask to be considered for parole. Even after the period comes to an end, your date of release will depend on the view that the Parole Board takes of the risks to public safety which you pose when it considers your case. Standing your stated intention not to engage in any offence focussed intervention work in the future that date (if any) may be a long time in coming.
The circumstances disclosed in the evidence also satisfy me that there is a significant sexual aspect to the offence of which you were convicted for the purposes of paragraph 60 of schedule 3 to the Sexual Offences Act 2003. It is accordingly an offence to which the notification provisions of that Act apply. The consequence of the imposition of the order I have just made is that you will remain subject to those notification provisions for an indefinite period as that term is defined in the legislation.
I also direct the clerk of court to intimate your conviction on charge 1 to the Scottish Ministers in terms of section 7(1) of the Protection of Vulnerable Groups (Scotland) Act 2007.
Finally, in respect of charge 3 on the indictment, that being the charge of attempting to pervert the course of justice, of which you were also convicted, I impose a custodial sentence of 12 months’ imprisonment. That sentence will necessarily be concurrent to the sentence I have just imposed and accordingly it will also be backdated to 20 November 2019.”
10 November 2021