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Read more about victims of crime and sentencing.
HMA v Ben Moss
Dec 7, 2023
On sentencing Lady Haldane made the following remarks in court:
"On 8th June 2023 you pled guilty to 20 serious crimes covering a broad range of offences including threatening and abusive behaviour, assault, sexual assault, including penetrating the vagina and anus of one complainer, sending indecent images and, most seriously, rape, perpetrated against 5 young women. The youngest complainer was only around 13 or 14 when you began to behave in an abusive way towards her, with your behaviour escalating to assault and rape.
These offences began when you too were around 14 years old, with the last date on the indictment including offending when you were 21. You are still only 26 years of age.
The agreed narrative prepared by the Crown set out in detail, at times harrowing detail, the nature of your offending and its effect upon each of the complainers. I have in addition been provided with a Victim Impact Statement from one of the complainers which make clear the effect your offending had, and continues to have upon them.
I had the benefit of a Criminal Justice Social Work Report which highlighted a number of concerning features arising from your offending behaviour, both in terms of the present indictment and your previous convictions and perhaps unsurprisingly concluded that using standard and recognised testing for sexual risk factors you placed in the Very High Risk category for further sexual offending. No protective factors were identified and the author concluded that ‘The harm posed by Mr Moss is likely to be very serious in nature and to have a lasting psychological impact on his victims. There are significant public protection issues in this case relating to the nature and number of both Mr Moss’s offences and his victims.
Standing the conclusions in that report, it appeared to me that the risk criteria in s210E of the Criminal Procedure (Scotland) Act 1995 might be met, and I instructed a Risk Assessment Report to be prepared. This is now to hand I have found it helpful.
The author of the report concludes that you have the capacity to cause serious harm, particularly in the context of relationships and that you demonstrate a range of characteristics that are problematic, persistent and pervasive and are relevant to the risk that you pose.
However, significantly, the author also concludes that these characteristics have the potential to be amenable to change. He notes that although you have previously had non custodial sentences imposed these were all short community disposals and so you did not have the opportunity to engage with any offence focused work. The author considers that there is the potential at least for your entrenched characteristics to be addressed through programme work and thus, over time, for the risk you currently present to be reduced. He has ultimately concluded that you pose a medium risk, having regard to recognised risk assessment criteria, the key element in that assessment being your potential for change.
I have also had the benefit of a careful submission from Mr McConnachie. He has drawn my attention to all the relevant parts of the Risk Assessment Report and has rightly emphasised the extensive nature and number of the adverse childhood experiences that you suffered during important years of your development which he understandably submits are of significance in understanding your offending.
I have taken on board all that he has to say.
You pled guilty to these offences just short of your 26th birthday, and so the Sentencing Young People guidelines do not directly apply to you. I have however had regard in more general terms to the age at which your offending started, and your age as at the latest date on the indictment, when you were 21.
Drawing all of that information together, there is no doubt that your culpability in relation to these offences is high, and that the harm you have caused is serious. However having had regard to the terms of the Risk Assessment Report in particular, I am satisfied that the sentencing purposes of protection of the public, punishment and rehabilitation as well as expressing disapproval of this sort of behaviour can be met by measures short of an Order for Lifelong Restriction.
Therefore in respect of charges 4, 13, 14, 19 and 27, which are all charges under s 38 of the Criminal Justice and licensing (Scotland) Act 2010 I impose a cumulo sentence of 3 years.
In respect of charges 5, 21, and 28 which are all charges of assault, and having regard to the aggravation in charge 21 that the assault was to the danger of the complainer’s life, I impose a cumulo sentence of four years
In respect of charges 6, 8 and 22, which are all charges under s 2 of the Sexual Offences (Scotland) Act 2009, I impose a cumulo sentence of four years having regard in particular to the nature of the penetration in charge 22.
So far as charges 10, 11 15, 18 23 and 30 are concerned, these all involve indecent communication, photography and videography, committed against four out of the five complainers. I impose a cumulo sentence of 3 years in respect of these charges.
The sentences I have just imposed will all run concurrently with each other, and with the sentence I am about to impose. For the avoidance of doubt these sentences also reflect a discount of 25 per cent to reflect the timing of your plea.
Turning then to charges 7, 20 and 29. These are all charges of rape, on various occasions, committed against three different complainers, involving on some occasions, according to the crown narrative, considerable violence or threats of violence in order to achieve your aim. A theme emerging amongst all the complainers is your repeated demands for sex and your refusal to take no for an answer. Self-evidently these are the most serious charges you face.
Having regard to the seriousness of these charges, against a background of all the information available to me from the reports to which I have referred, I am satisfied that the requirements for an extended sentence so far as these charges are concerned are met in your case, in short that the normal period of licence would not be adequate to protect the public from serious harm from you when you are in due course released. This sentence will be in two parts, a custodial element and an extension period after your release from custody, during which you will be subject to a licence, the conditions of which will be set by the Scottish Ministers. Breach of any of these conditions will make you liable to be recalled to serve out the whole of the sentence in custody, and you may also be sentenced for any offence committed while on licence.
There will be opportunities during this sentence to address the issues which have contributed to your offending and I strongly advise you to take advantage of those opportunities if you are to have any prospect of making a positive contribution to society when you are released.
The total extended sentence in respect of charges 7, 20 and 29 is 16 years, comprising a custodial part of 11, and an extension period of 5 years. As I have already recorded, you did of course plead guilty at a first Preliminary Hearing in this case, and so I will discount the custodial part of your sentence to reflect that plea to a period of 8 years 3 months. The extension period remains the same. I will backdate the custodial part of your sentence to 28th March 2022 when you were first remanded in custody.
As I said to you when you were convicted, as a result of your conviction and the sentence I have imposed in respect of these charges you are subject to the notification requirements of the Sexual Offences Act 2003 for an indefinite period, and your name has been added to the list of persons deemed unsuitable to work with vulnerable groups.