APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Smith	[2010] HCJAC 70 XC434/09 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST SENTENCE by ROSS WEBBER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Scott Q.C.; Garden, Stirling Burnet, Haddington

Respondent: Bain Q.C., A.D.

17 June 2010

[1] In this appeal, the appellant, Ross Phillip Webber, takes issue with certain sentences imposed following his conviction on certain charges in what was a very extensive indictment involving others. The indictment was essentially concerned with offences against sections 52 and 52A of the Civic Government (Scotland) Act 1982. There was also an allegation of conspiracy. In particular, the appellant takes issue with the sentence imposed on him in relation to charges 25 and 54 in the indictment. Charge 25 was a charge alleging distribution or showing of indecent photographs or pseudo photographs of children contrary to the 1982 Act section 52(1)(b), as amended. In respect of that charge the sentencing judge adopted a starting point of 5 years imprisonment and, by the application of a discount of 25%, arrived at the sentence which he imposed of 3 years, 9 months imprisonment. That was ordered to be an extended sentence, the extension period being 1 year. The other sentence which has been the particular focus of this appeal is that imposed on charge 54, the conspiracy charge. It was, so far as the appellant was concerned, the basis of a conviction in relatively limited terms. The period concerned ran from 27 August to 5 October 2007. So far as the appellant was concerned, the allegation and conviction was that, at an address in North Berwick whilst acting along with others, who are not named, but are designated by internet addresses, he attempted to make arrangements to meet up with them and gain access to children for the purpose of committing sexual offences against them. In relation to that charge, the sentencing judge imposed a sentence of 5 years imprisonment, again it was an extended sentence and the extension period was 1 year. The sentence on charge 54 was ordered to run consecutively to the sentence on charge 25 and no issue is taken with that feature of the sentence imposed.

[2] On behalf of the appellant it was emphasised that in relation to charge 25 a relatively small number of images was involved, the total was 188. A proportion of these, 125, were still images, and 63 were video images. Our attention was drawn to the nature of the images, as revealed in the sentencing judge's report, and the extent of the distribution, which was the subject of agreement in a joint minute. It was submitted that the number of images was essentially small and that the range of distribution was small. We accept that submission. Our attention was drawn to the guideline judgment in the case of HM Advocate v David William Graham HCJAC 50, as yet unreported, a judgment dated 27 May 2010. It was submitted that the sentencing judge's starting point in relation to the sentence on charge 25 of 5 years was excessive, having regard to the features of that particular charge to which we have referred. Other submissions were made in relation to the sentence on charge 54 and the limited scope of that charge was emphasised and the unspecific nature of the activities which featured in sub-paragraph (o) of it.

[3] We have come to think that the sentence which the sentencing judge imposed on charge 25 was, in all the circumstances relied upon, excessive. We consider that the starting point of the sentencing judge was excessive. No criticism was made of the discount which he applied. We consider that, adopting the same discount for that sentence as did the sentencing judge, as discounted it should be reduced to 2 years 8 months and that is our determination in relation to that sentence. We would wish to point out in taking this course that it is, in large measure, based upon what was said in HM Advocate v Graham, a guideline judgment, the benefit of which the sentencing judge did not have, but which of course we must take into account here now, today.

[4] So far as charge 54 and the sentence imposed on it is concerned, we have not been persuaded that that sentence was excessive. The conspiracy was of a pernicious nature and, even taking into account the limited terms of paragraph (o) of the charge, we consider that the sentence selected by the sentencing judge was within the range of sentences reasonably open to him. Therefore we shall not interfere with that charge. That is the determination of the court.

KW