A man convicted of sexually touching a teenager has had his sentence reduced after he appealed against his sentence and lodged a bill of suspension seeking to suspend the sentence imposed by the sheriff at trial. 
William Hepburn, aged 79 at the time of sentencing, was originally sentenced to 12 months’ imprisonment after being convicted of contraventions of sections 3 and 30 of the Sexual Offences (Scotland) Act 2009. He argued that the sheriff who sentenced him had imposed an excessive sentence and did not consider to the Criminal Justice Social Work Report prepared on his behalf.
The first charge involved sexually touching a complainer in the two years and nine months before she turned 16. The second charge was a continuation of this conduct until December 2017, by this time the complainer was aged 20. He was convicted by the trial sheriff in November 2020, at which point his sentencing was adjourned in order to get a CJSWR. 
After receiving the CJSWR, the trial sheriff did not find it of assistance as the appellant continued to plead not guilty. The sheriff observed that author of the report had failed to challenge the appellant in relation to his version of the events. As a result, the case was continued to allow the sheriff to discuss the matter with the author of the report. In 2021 the appellant was sentenced to the maximum available custodial sentence. 
The sheriff determined that although appellant had never served a custodial sentence before, the maximum sentence was necessary due the seriousness of the offending. In her opinion, a community disposal would have no deterrent value and “fail utterly to express the disapproval society has” for the appellant’s behaviour.
It was argued by the appellant that the sheriff has imposed an excessive punishment. The meeting with the author of the CJSWR was not standard procedure and suggested that she had disregarded non-custodial alternatives. Counsel for the appellant further submitted that the sheriff had not fully considered section 204 of the Criminal Procedure (Scotland) Act 1995, which required the court to impose a first-time custodial sentence only if it considered no other method to be appropriate and had erred in characterising a community sentence as “no sentence at all”.
In delivering the opinion of the court, Sheriff Principal Stephen stated: “The sheriff’s decision to engage directly with the author of the CJSWR outwith the presence of the parties is highly irregular. It matters not that the defence solicitor was given the opportunity to seek a meeting separately with the criminal justice social work department. We cannot see that that is of any assistance or ameliorates this irregular procedure.”
She continued: “It can be argued that the sheriff had shown bias, or the appearance of bias, towards the appellant and that she was determined to impose the maximum custodial sentence despite the terms of the CJSWR.”
Sheriff Principal Stephen concluded: “In these circumstances, and given that the sheriff has failed to provide a supplementary report to the appeal court on the statement of facts in the bill of suspension, we are entitled to conclude that the procedure adopted by the sheriff has left her open to the criticism that she was determined to challenge, in private, the author of the CJSWR as to the content of the report which she found painted too favourable a gloss on the appellant: his attitude to the offences and his personal circumstances.”
Sheriff Principle Stephen continued: “Standing the charges of which the appellant has been convicted, we are of the view that a custodial sentence is the only appropriate sentence standing the nature and gravity of the offending which took place over a significant period of time involving the same complainer. However, having regard to the appellant’s circumstances we consider that it is not necessary to impose the maximum sentence on summary complaint.”
As a result, the appellant’s original sentence was quashed. The Sheriff Appeal Court imposed a sentence of 8 months’ imprisonment.