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Convicted Sex Offender Wins Sentencing Appeal

A man who pled guilty to engaging in unlawful sexual activity with a 14-year-old girl has won an appeal against having an extended sentence imposed by the sheriff. The Appeal Court of the High Court of Judiciary decided that the reasons given for an extension period for the man's sentence were inappropriate, and quashed the decision.

The events detailed in the case heard by Lord Menzies and Lord Turnbull occurred in 2016, when the man, Adam Tonkin, was 24. He pled guilty to an indictment which outlined that he engaged in unlawful sexual activity with a girl between February and March 2016, which included sexual intercourse on two occasions.

After receiving a Criminal Justice Social Work report, the sentencing sheriff imposed a 12-month custodial sentence with an extension period of 12 months afterwards. The sheriff's decision was based on her wish that the man would be subject to a period of "post-release supervision", which was the issue disputed in this case.

Lord Menzies and Lord Turnbull found that the sheriff's reasoning was inadequate for many reasons. They agreed with the case put forward on behalf of the appellant that the desire for a period of post-release supervision was not in itself sufficient for the period of extended sentence. The judges noted that the appellant would already be subject to a period of post-release supervision, in light of the provisions of section 1AA of the Prisoners and Criminal Proceedings (Scotland) Act 1993 - a fact that was not mentioned by the sheriff in her decision.

Further, the judges noted that, under Section 210A of the Criminal Procedure (Scotland) Act 1995, the imposition of an extended sentence may only be made on the judgement that the period for which the offender would be subject to license would not be sufficient to protect the public from the risk of serious harm from the offender. In this case, no point in the sheriff's decisions attempted to meet this test or otherwise explain why the period of license would be insufficient to maintain public safety.

Criticism was made on the basis that the sheriff had not taken into account the fact that the offence had taken place two years before sentencing was made, and the offender had not reoffended within that period. Also, the social work report upon which sentencing was based was deemed to have been confused about the facts of the case.

The authors of the report had said that the age of the victim had been one of many criminal elements of the case, when in fact it had constituted the only aspect of the criminality. The authors had also said that the offender had pleaded guilty to sexual assault, when in fact no such plea had been made. The sheriff's decision making was based upon this report which was deemed to have been flawed and erroneous.

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