Reference by the Scottish Criminal Cases Review Commission:- On 8 February 2006 at the High Court in Kilmarnock the appellant pled guilty to a charge on indictment under section 76 of the 1995 Act in the following terms:- "Between 15 February 2004 and 2 June 2004 at 106 Wedderburn Street, Dunfermline, you did make indecent photographs or pseudo-photographs of a child: CONTRARY to the Civic Government (Scotland) Act 1982, Section 52(1)(a) as amended." The maximum period of imprisonment in relation to such an offence is ten years. On 2 March 2006 the appellant was sentenced to an extended sentence of 8 years and 8 months, of which the custodial term was 4 years and 8 months and the extension period was 4 years. The sentence was backdated to 8 February 2006. The sentencing judge indicated that had it not been for the plea of guilty she would have imposed a custodial term of 7 years. The appellant appealed against that sentence. The principal ground of appeal was that the sentence was incompetent, as the sentencing judge had taken as the starting point before discount a sentence which exceeded the statutory maximum. The Appeal Court refused the appeal stating inter alia "...the ultimate result the sentence she imposed did not contravene the provisions of section 210A(5) of the 1995 Act." The Commission thereafter referred the case because the appellant's sentence had been arrived at through an incompetent process of reasoning. Here the court considered the referral in light of the statutory maximum that may be imposed.

Court: Court Of Session (Appeal Court) (Scotland)

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