HMA v Jack McKay

At the High Court in Edinburgh today, 25 January 2018, Lady Scott imposed an extended sentence of seven years and eight months on Jack McKay after the accused pled guilty to indecent assault of a fellow prisoner at HMP Perth. The custodial part will be two years and eight months, which will be followed by an extension period of five years on licence.

On sentencing, Lady Scott made the following statement in court:

“This case comes before me as a remit for sentence from the Sheriff Court at Perth. The accused pled guilty by sesction 76 procedure to a charge of indecent assault of a fellow prisoner within Perth prison.

“The accused was serving a sentence at the time for a conviction in contravention of section 35 of the Sexual Offences (Scotland) Act for which he received 32 months’ imprisonment and a Supervised Release Order of 12 months.

“The basis of the remit was to allow consideration of an order for a risk assessment with a view to imposition of an Order for Lifelong Restriction.

“The accused is a 61-year-old man with a long history of convictions for indecency and sexual assault beginning in 1976. He is of low intellectual functioning.

“I am not persuaded that the risk criterion in section 210E may be met. The test in s.210E is not simply presenting a risk of re-offending but a likelihood of seriously endangering lives or physical or psychological well-being. 

“A life sentence requires endangerment of serious harm which is exceptional and I consider an alternative of a significant extended sentence can address the need for public protection.

“I have had regard to the following factors:

  • The majority of his offending is for indecency with relatively minor disposals. More significantly he has two High Court convictions for indecent assault in 1998, for which he received 12 months, and most significantly for sodomy, for which he received an extended sentence of five years’ imprisonment and five years’ extension period on licence.  
  • I don’t accept the suggestion in the reports that he has shown no indication of desistance. The period on a Community Payback Order and supervised release under the extended period seemed to have a positive affect for the time spent under supervision. He clearly needs supervision and activity to keep him occupied and there are signs he is motivated to change.
  • The reports indicate he has genuine remorse and he confessed to his conduct and that he would accept help.
  • The age of the accused is such that it suggests is he may reduce his offending pattern following a substantial determinative sentence.

“Mr McKay, you have pled guilty to a forcible indecent assault on a younger and vulnerable man causing him great fear and distress. You were in custody for a sexual offence at the time.

“You are assessed as presenting a high risk of re-offending. In view of your record for sexual offending I require to impose a substantial sentence directed at the protection of the public as well as punishment. I take into account you have pled guilty at an early stage.

“For the reasons I have given, I am going to impose an extended sentence. An extended sentence consists of a period of custody and a period of extension of your licence when released.

“If you breach the conditions of your licence during this extended period your licence may be revoked and you may be returned to prison to complete the full term.

“I sentence you to a total extended sentence of seven years and eight months consisting of a period of imprisonment of two years and eight months, reduced from four years to reflect your early plea, and an extended period on licence of five years.

“This sentence is to run consecutively to the total period of imprisonment to which you are already subject.”

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