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Ex-Teacher Who Engaged In Sexual Activities With School Pupils In Shetland Has Sentence Reduced

On appeal at the High Court of Justiciary a former Shetland teacher who was convicted of engaging in sexual activities with two students has had his sentence reduced by three months.

Kieran Malcolmson was convicted of one offence under the Sexual Offences (Amendment) (Scotland) Act 2000 and another under the Sexual Offences (Scotland) Act 2009. Originally, his sentence were concurrent and resulted in a 15 month custodial sentence.The first offence took place in 2009 and at the time the appellant was 24 years old. The charge extended to kissing the complainer on the mouth and penetrating her vagina with his fingers. The second offence took place in 2018 and involved a then-16 year old complainer. The appellant was then 33 and the charge involved kissing the victim on the mouth and repeatedly asking her to join him in a dark and secluded area.

The offences occurred at an area where young people gathered at night in order to consume alcohol. At the time of the offences the appellant had consumed alcohol. The sentencing sheriff determined that the offences involved an element of premeditation as the appellant attempted in both cases to get the complainer alone.

The sheriff observed that the appellant had no previous convictions. It was determined that he would never work as a teacher again. A Criminal Justice Social Work report was carried out and it was determined that the appellant was at a low risk of reoffending. However, the sheriff took the view that the seriousness of the offences and the fact that the appellant had engaged in systematic premeditated conduct meant that the only appropriate disposal was a custodial one.

It was submitted for the appellant that a custodial sentence was not appropriate, or alternatively that the length of the custodial sentence was excessive. There had been no element of grooming in the offences, and the CJSWR had been on the whole favourable to the appellant. Counsel also drew attention to the smaller age gap between the appellant and the complainer in the first charge and the reduced severity of the second.

In delivering the opinion of the court, Lord Pentland stated: “As the Sheriff aptly observed, both offences in the present case involved serious breaches of trust by the appellant. The sexual activity in charge 1 included digital penetration of the victim’s vagina and penile penetration of her mouth. At the time he committed both offences the appellant was under the influence of alcohol.”

He continued: “We consider that the Sheriff was well-founded in his view that the offences involved some degree of premeditation on the part of the appellant. In the case of charge 1 he engineered a situation in which he found himself alone with the victim. So far as charge 2 is concerned, the appellant repeatedly invited the victim to accompany him to a secluded place after he had kissed her. It is important also to note that the appellant has expressed no remorse for what he did.”

He went on to say: “On the other hand, we accept that there was no grooming of either victim. We note also that at the time of the offence in charge 1 the appellant was not yet 24 and was therefore still a relatively immature young man, and that the age difference between him and his victim was less than 7 years.”

Lord Pentland concluded: “Young persons must be protected from sexual abuse and exploitation by persons entrusted with their care, welfare and education. Taking account of the aim and purpose of the legislative provisions, and all of the other relevant factors, we are satisfied that the Sheriff was right to take the view that the nature and gravity of the offences, taken together, could only properly be marked by the imposition of a custodial sentence. We are persuaded, however, that the length of the custodial term selected by the Sheriff was excessive.”

As a result, the Sheriff Appeal Court quashed the sentences imposed on the appellant and substituted a single sentence of a custodial sentence of 12 months.

 

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