HMA v Adam Tonkin

Mr Tonkin who pled guilty to unlawful sexual activity with a 14 year old girl has successfully challenged a sheriff’s decision to impose an extended sentence. The appeal court in Edinburgh quashed the extension period after ruling that the trial sheriff did not state why this was to be imposed.

Mr Tonkin was sentenced to 12 months imprisonment which was reduced from 18 months as a result of his guilty plea and also an extension period of 12 months. This was after considering the social work report. The appellant then appealed the extension period. Criticism was given to the sheriff who stated that she wished the appellant to be subject to “post-release supervision” but did not elaborate on this.

It was argued by the appellant’s legal team that this reason alone did not justify an extended sentence. The imposing of an extended sentence must also meet the statutory test. The Criminal Procedure (Scotland) Act 1995 provides that an extended sentence may only be imposed if the court considers that the period for which the offender would otherwise be subject to licence would not be adequate for the purpose of protecting the public from serious harm from the offender. The sheriff did also not refer to the risk imposed by the appellant and also that he had not been in trouble since the case arose two years previously. There was also criticism of the social work report.

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However the appeal judges made clear the sheriff made plain in her report to the appeal court that she appreciated that the appellant had not pled guilty to an offence of sexual assault and she appreciated that the terminology in the social work report was inappropriate. The court agreed with the overall argument and quashed the extended sentence. Lord Turnbull said: “The sheriff does not explain that she took account of the fact that the appellant would be released on licence in any event, she does not at any stage of her report refer to the test provided for by section 210A of the 1995 Act and she does not explain why the period for which the appellant would be subject to licence would not be adequate.