JUDGE DEFENDS DECISION NOT TO JAIL ATTEMPTED RAPE ACCUSED
A JUDGE has defended her decision not to jail a man for trying to rape a five-year-old girl.James Weir (21) was put on probation for two years after a court heard that he was just 12 when the offence was committed in Dunfermline.
If it had come to light at the time, Weir would probably never have been brought to court, said judge Lady Smith.
She told the High Court in Edinburgh on Friday it was impossible to treat all such offences in the same way.
"It is all too easy to assume that the only appropriate sentence for the crime of rape or attempted rape must be a custodial one." But if any court were to do so, it would fail in its duty to consider the whole facts and circumstances of the individual case," said Lady Smith.
The court heard that Weir, who was living with foster parents at the time, had been getting sex education lessons at school when he turned his attention to the youngster.
Before being taken into care, he had come from a "chaotic" home where he witnessed sexual behaviour between his dad and step-mum and was exposed to pornography.
Weir's victim - who cannot be identified for legal reasons - kept silent for years before telling a psychologist what had happened to her.
She was only five-years-old when Weir lured her into his bedroom, said advocate depute Ashley Edwards, prosecuting.
Weir persuaded the youngster to take off her clothes and lie on his bed.
He kissed and stroked her and persuaded her to give him oral sex, the court heard.
Ms Edwards said that Weir continued to take advantage of the girl every time he found her alone.
After he was finally questioned by police he told them, "I'm sorry.
I want to put it right." In court, Weir of 10 Dean Road, Kirkcaldy, pleaded guilty to attempted rape, admitting that the abuse had gone on from January 2002 until September of that year at an address in Dunfermline.
Ms Edwards said the girl had been receiving counselling for an unconnected personal problem and told a clinical psychologist about the abuse.
Fife Constabulary's family protection unit were called in in April last year.
When Weir appeared for sentence on Friday, solicitor advocate Gordon Martin, defending, begged Lady Smith not to jail him because of the unusual set of background circumstances and because Weir had grown up, matured and was leading a useful life.
"It is a difficult matter for the court," said the lawyer.
"The offence itself is clearly a very serious one but the accused is a very young man still and a young child, effectively, when the offence was committed." Lady Smith said she would not repeat the details of the offence but told Weir, "Any right-thinking person would find the account of such conduct abhorrent and would grieve for the loss of a five-year-old's innocence and the breach of her right to be nurtured and protected that it involved.
"However, in your case, that is not the whole story.
You were, yourself, a child at the time.
You were only 12-years-old and had the matter come to light then, I would be surprised if it would have been brought to court; it seems to me rather more likely that it would have been dealt with through the Children's Hearing System." The judge continued, "Apart from those offences for which the sentence is fixed by law - and this is not such a case - sentencing is not a matter of imposing the same sentence for every commission of a particular crime.
"In any such sentencing decision of the court, regard must be had to what actually happened in the case, why it happened, what were the personal circumstances of the offender at the time and how the offender has conducted himself since then." The judge said she had two detailed, thoroughly professional reports which indicated a need for very careful consideration of what would be an appropriate sentence.
She told Weir, "You plainly had what can only be described as a chaotic upbringing.
"You lived for a while with your father and stepmother in what is described as a highly sexualized household.
"At the instigation of your stepmother, highly inappropriate sexual activities involving you took place and you witnessed others.
"You were exposed to pornography and open discussion of matters sexual.
"The offences to which you have pled guilty occurred there about the time when you were receiving sex education at school.
"You say you had no idea at the time as to what was and was not sexually appropriate and given the account of your childhood that I have read, that would not be at all surprising." Lady Smith also gave credit to Weir for accepting responsibility and making real efforts to empathise with the little girl.
"Further, there is no suggestion in either report that you present any continuing risk to the public." She added, "Your case is very unusual for the reasons I have explained." Weir's name will remain on the sex offenders' register until he has completed his probation.
