SENTENCING STATEMENTS

On sentencing, Sheriff McGlennan told Cowan:

"Ian McMillan Cowan, you pled guilty to charges one, three, four, six, seven and nine upon the indictment. With the exception of charge nine, which related to your breach of a bail condition, each crime involved serious sexual offending. All of this sexual offending was directed at children.

Charge one involved contraventions of sections 20, 21, 23, and 26 (1) and (2) of the Sexual Offences (Scotland) Act 2009. The victim was a female child who was under the age of 11 during the entirety of the four and a half year period over which the offending took place. I will refer to her as Child A.

Charge three involved contraventions of sections 31, 33 and 34 (1) of the 2009 Act. The victim was a female child who was aged 13 during the six month period over which the offending took place.  I will refer to her as Child B.

Charge four was a contravention of section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005.  Child B was also the victim of this offending. She was also 13 years of age when this offence was committed.   

Charges six and seven related to offending involving child exploitation and abuse images. Charge six was a contravention of section 52(1) (a) of the Civic Government (Scotland) Act 1982. Charge seven was a contravention of section 52(1) (b) of that Act.

Charge nine did not involve sexual offending. It related to your breach of a bail condition. The condition was imposed when you were admitted to bail on 13 March 2023. The order required you, amongst other things, not to use any device capable of accessing the internet unless it had the capacity to retain and display the history of internet usage, and to make the device available for inspection by police officers for inspection upon their request. On 16 January 2024 you breached that condition.     

The sentencing purposes and process

In determining sentence my objectives are the protection of the public by deterring you from offending again, imposition of condign punishment for the crimes committed, and expression of society’s disapproval of your criminal conduct. I have arrived at the sentences which will shortly be imposed using the process framework set out by the Scottish Sentencing Council. This has included taking account of the aggravating and mitigating factors which pertain to the charges to which you have pled guilty. I have examined these factors in relation to each charge separately taking account of the facts and circumstances of each charge. However it is correct to say that much of the mitigation provided, as I shall come to, is presented as having general application to your offending. Similarly the aggravation of the existence of previous convictions falls to be considered in respect of all of the charges.      

Previous convictions

Turning then to your record of previous convictions, this discloses that you have offended twice in the past. One of those convictions is for possession of cannabis.  It is by its nature an offence with little connection to the offending before me. In those circumstances I treated this conviction as being without relevance to my sentencing decision.

The other prior conviction was for the statutory offence of stalking. That is different. The crime involves assailing another with a course of conduct intended to cause fear and alarm. It is an offence where harm is caused to another person.  As such this conviction operates to aggravate sentence in this case. There are however limitations to the level of aggravation. The conviction is not for sexual offending. It took place nearly a decade ago. It was not prosecuted upon indictment, and the court did not impose a custodial sentence.

Mitigation of the sexual offending

The mitigation provided in terms of the sexual offending is provided, as said, on a general basis. I am asked to take account of your learning difficulties with dyslexia and dyspraxia and the difficulties they presented for you in childhood and in adult life. Whilst I accept that you have faced challenges in that regard, and to that extent take those challenges into account, I do not perceive these challenges as bearing upon the offences committed. Likewise your struggles with both alcohol and cannabis. They too are challenges which you have faced, but I cannot see that they have any relationship with the sexual offending which was carried out in a calculated way.

There is mitigation however in the fact that you have spent 492 days subject to a curfew condition. You did not breach that condition. This was not an electronically monitored order, and thus the terms of the Bail and Release from Custody (Scotland) Act 2023 do not apply. Nevertheless whilst I do not adhere to the approach set out by section 5 of the 2023 Act, I do consider that the existence of this period where your liberty was curtailed is a significant mitigating factor.     

Imposition of a prison sentence

The seriousness of a crime is assessed by weighing up the offender’s culpability for the offending, and the harm the offending has caused. In each of the charges on this indictment your culpability, and the harm caused, were both at a very high level. It is a tenet of our criminal justice system that a custodial sentence must only be imposed where no other sentence is appropriate. However the seriousness of your offending was such that it is not possible to meet my sentencing objectives by any other disposal than by the imposition of imprisonment.

Modification

You pled guilty to these charges at the first diet. Your intention to plead guilty was intimated in advance of that calling. The law provides that a modification of sentence may be applied where a plea of guilty which is intimated at an early stage in procedure benefits the administration of justice. I am satisfied that in a number of ways, not least that the child victims of your crimes have been spared requiring to give evidence, there was such a benefit obtained by your early plea. There will therefore be a modification of the headline sentences imposed by one quarter.

Cumulo sentence for charges one, three, four, six and seven 

The indictment which you faced grouped together a number of pieces of sexual offending of a similar nature, the offences occurring during time periods which overlapped. Each charge, as said, is of a gravity that requires the imposition of a custodial term. However I have decided that it is appropriate to impose a cumulo sentence in respect of the sexual offending. That is to say, one sentence addressing all of the offending carried out in charges one, three, four, six and seven. Were I not to do so, and instead impose separate consecutive terms for each offence, the overall sentence would go well beyond the maximum term which I am permitted to impose.  

I will now explain my reasons for the cumulo sentence to be imposed upon these charges. In doing so I will also state the sentence that would have been imposed had the offence in question stood alone before me. The sentences stated are those that would have been imposed prior to application of modification.     

Charge one

Charge one accounts a number of offences perpetrated upon Child A between July 2018 and February 2023. The offending commenced when the child was seven or eight years of age.  You meantime were a mature adult throughout the entirety of that time. During the period libelled you sexually assaulted Child A, and had her look at a sexual image of another young person. Further you caused her to participate in sexual activity, and made her the subject of your voyeurism. Your voyeurism extended to taking still and moving child abuse images of Child A. 

Your abuse of Child A, as libelled at charge one, began when she was very young. It the continued over a number of years. It was protracted and repeated. The abuse in its various forms was conducted with premeditation. You cynically exploited times and occasions where you calculated that your conduct was unlikely to be discovered. Your offending persisted despite the child repeatedly asking you to desist. Rather than relent you badgered her to continue to engage in sexual activity designed to gratify you. As you must know, Child A would have rightfully expected that you would be a person who would protect and safeguard her. Instead you did the opposite. You chose to repeatedly abuse her. All of these aspects of your offending are significant aggravating factors. 

Victim impact statement

Child A has provided the court with a victim impact statement. It covers all of the offences which you perpetrated upon her. She describes that your abuse left her with lasting feelings of shame and embarrassment, and that she is devastated by your breach of her trust. Her general disposition is now one in which she describes herself as “very nervous” and “uneasy”, particularly so towards men. Previously a sociable child she now states that she is “very withdrawn”. She had been left with an inability to trust others, even friends. Worryingly she reports that the anxiety she is suffering from as a consequence of your abuse of her has adversely impacted on her education.

Had I been dealing with this charge singly I would have imposed a sentence of 40 months’ imprisonment.

Charge seven

In terms of charge seven, on 7 March 2023 the police were alerted to child sexual exploitation and abuse images having been uploaded by you to your snapchat account. A warrant to search your house was craved and executed. During the search your mobile phone was seized. Examination of the device was conducted by specialist officers. This revealed, amongst other things, that sexual exploitation and abuse images of Child A and also of a 10 or 11 year old female child had been sent by you by way of snapchat to other users of that platform.  

The distribution of child abuse images has a very high harm quotient. This operates on two levels. For the child victims there is the real and terrifying prospect that the abusive images will thereafter be distributed further still. The anguish caused by that prospect significantly exacerbates the harm to them. The offence also has a pernicious effect upon the safety of children. Distribution of these types of images undeniably serves to perpetuate the practice of the taking and making of such images. As such there is a general harm caused to the community.

Your culpability in this offence is undeniably very high. Axiomatically the acts of distribution were premeditated. They took place on more than one occasion and your communication with one of the recipients evidenced that you took pleasure in your role as distributor. It further falls to be said that as regards Child A your conduct as described in this charge also amounted to a grotesque breach of trust.

Had I been sentencing this charge on its own the sentence imposed would have been one of two years’ imprisonment.             

Charge three

Charge three arose from the same examination of your phone. It disclosed communications with Child B. These commenced by you adding her upon snapchat in the summer of 2022.  You created a fictitious personality, one part of which was to say that you were 16 year old boy who lived locally, who was employed by a bus company. You used this guise to facilitate your sexual exploitation of Child B. This took place over four and a half months between October 2022 and the beginning of March 2023. During that time Child B was 13, although when you first contacted her she maintained that she was younger. Posing as a 16 year old boy you requested and received images of the child naked. You sent her indecent images on a daily basis.  More images were then sent by Child B. She felt pressurised into to doing so.

You took steps to reduce the chances that your exploitation of the child would be discovered. You were careful not to show your face in messaging. You did not give your name. You asked her not to tell anyone about the exchanges on the pretext you might lose the job which you had maintained you had as part of your ploy. The tactics became more sinister still. Child B was advised by you that if she told anyone you would find out and you would then come and find her. She was scared. You requested more explicit and degrading images and, fearful of you, the child complied. In an attempt to be released from this abuse, Child B tried to unfollow you on snapchat, but you were not prepared to allow her that solace. Rather, you continually got in touch with her.

This was a cynical and protracted sexual exploitation of a child for your own gratification. It was clearly carried out with significant elements of planning, thought being expended upon how you would best avoid detection. As before there is no doubt that Child B will have been left distressed and humiliated by your conduct. It’s clear also that your menaces caused her to fear you. There is no victim impact statement lodged here, but it is to be inferred, obviously so, that the abuse perpetrated upon child B will be very likely to adversely effect in a number of ways well beyond her childhood.

I note at this point that you informed the author of the justice social work reports of your continuing belief that Child B was 17 years of age. I reject that you have any such belief. There is no conceivable basis upon which that could be formed, and I am drawn to the inevitable conclusion that this was an attempt at minimising your culpability in the eyes of the author of reports you knew would come before the court.

Dealt with as a stand alone charge I would have imposed a sentence of 36 months’ imprisonment in respect of charge three.  

Charge four

Distinct sexual offending is accounted at charge four of the indictment. Between October 2022 and early March 2023 you twice messaged Child B in an attempt to inveigle her into meeting with you. On each occasion you suggested a meeting point that was likely to afford some cover from public gaze. As you accept, you proposed that at this meeting you would engage in sexual activity with Child B – although thankfully she refused to attend.

The potential harm to Child B by your conduct is high. Once more the circumstances of the offence, the repeated requests and the deliberate selection of a secluded meeting place, demonstrate that the offence was committed with persistence and calculation.

Had I been required to sentence this charge alone I would have imposed a sentence of 20 months’ imprisonment.                 

Charge six

The interrogation of your phone by specialist officers revealed further offending, this libelled at charge six. The examination disclosed that you made a number of still and moving child abuse images. 50 accessible still images were found, two being at Category B and 48 at Category C. 70 inaccessible images were found, 11 of which were at Category A, six at Category B, and 62 at Category C.

In addition 239 accessible video images were found. 59 of these moving images were at Category A, 36 at Category B, and 144 at Category C. Lastly six inaccessible videos were recovered, three of which were at Category B, and three of which were at Category C. 

The number of images within Category A, in particular the number of moving images in this category, is a significant aggravator of this offence.

Had I been dealing with charge alone I would have imposed a sentence of 2 years’ imprisonment.

Charge nine

The bail condition breached in charge nine was designed to act as a safeguard against further offending by you whilst you awaited trial.  It was very much upon your undertaking that you would adhere to this condition that the court was prepared to release you. You wilfully breached that condition not only by downloading social media applications which would not retain usage history, but by attempting to conceal the phone upon which these applications had been downloaded. The safeguard the court employed to protect the public was thus wilfully disregarded.

What is said is that your decision to attempt to secrete the phone from the officers was predicated on your desire to prevent the police seeing messaging in which you sought to source cannabis.  This by its very nature is of limited mitigatory value. Further in any event the offence was also committed by the downloading a social media application.

The public have a right to expect that where an accused person charged with serious offences is granted bail, the conditions set by the court to safeguard against the prospect of further offending are kept to. Where they are breached, then a serious offence is committed.

The only appropriate sentence to impose here is a prison term. Further for the deterrent effect of that term to be meaningful, the term must be imposed consecutively to the term imposed on the other charges.

Total sentence imposed

I now turn to the sentences to be imposed. I will explain firstly the sentence that would have been imposed but for application of modification that takes account of the stage at which the plea of guilty was offered. That is sometimes referred to as the headline sentence.

The gravity of the charges before me is such that to meet the sentencing objectives a custodial term at the limit of my sentencing powers required to be in contemplation. Those powers extend to allowing me to impose headline prison terms in excess of five years imprisonment.

However taking account of the mitigation provided, in particular the period spent subject to a curfew condition, I will restrict the headline cumulo term of imprisonment for charges one, three, four, six and seven to 52 months’ imprisonment.  In terms of charge nine the sentence to be imposed consecutively to that cumulo term is 4 months’ imprisonment.

The total headline sentence of imprisonment is therefore 56 months’ imprisonment, after modification the overall sentence imposed is one of 42 months’ imprisonment. I will backdate that sentence to the 17 July 2024 when you went into custody upon remand awaiting sentence.

Sexual Offences Act notification requirements

Each of charges one, three, four, six and seven involves offences listed in schedule 3 to the Sexual Offences act 2003.  In terms of section 82 of that Act, the prison sentence imposed for these offences exceeding 30 months, the effect is that you will be subject to the notification requirements set out by the Act for an indefinite period.  

Sexual Harm Prevention Orders

I am satisfied that the catalogue of offending against children is such that the Crown’s unopposed application for Sexual Harm Prevention Order should be granted.  As such I will impose such an order in respect of each of charges one, three, four, six and seven. To provide the protection the orders seek to provide I will make that order for a period of 7 years from today’s date. The terms of the order are as sought in the application. These are:   

1.  You are prohibited from having or attempting to have any contact, or communication of any kind whatsoever, with any person under the age of 16 years, save for incidental or unavoidable contact.
2. You are required to inform an officer of the Sex Offender Policing Unit responsible for managing you in terms of the Sexual Offences Act 2003 of any electronic devices you own, use or possess which are capable of accessing the internet or communicating electronic messages, and to do so within 72 hours of obtaining ownership, use or possession of the device.
3. You are prohibited from deleting the internet browsing history of or other records of calls, texts, messages or emails or any other communications on any such devices owned, possessed or used by you without the permission of an officer of the Sex Offender Policing Unit responsible for managing you in terms of the Sexual Offences Act 2003.
4. You must without delay make any device capable of accessing the internet or storing images available for inspection by any officer of the Sex Offender Policing Unit responsible for managing you in terms of the Sexual Offences Act 2003, or any other officer acting on that officer’s instruction. This includes, but is not limited to, the provision of any user names, passwords, or other necessary information required to enable them to inspect said device.
5. You are prohibited from downloading, installing, activating or using any software or service designed to, or having of the effect of, (i) preventing logs of Internet access, web pages, records of calls, text messages, e-mails or other communications being preserved (ii) deleting Internet history or other records of calls, text messages, e-mails or other communication (iii) otherwise concealing specific internet web pages access, other records of calls, text messages, e-mail or other communications, on any such devices that are owned, possessed or used by you.
6. You are required to permit and facilitate the installation and maintenance of remote monitoring software on any such devices by the police force responsible for managing you in terms of the Sexual Offences Act 2003.
7. You are prohibited from residing anywhere other than at an address approved by an officer of the Sex Offender Policing Unit or Criminal Justice Social Work responsible for your monitoring and management in terms of the Sexual Offences Act 2003.
8. You are required to advise an officer of the Sex Offender Policing Unit responsible for monitoring you in terms of Sexual Offences Act 2003 of any relationship, association or acquaintance you have or enter into with any person.

Non Harassment orders 

It is necessary that I make non-harassment orders to protect both Child A and Child B.  The calculated and manipulative nature of the offending together with the gravity of the same mean that the orders need to extend into the adulthood of each of the victims.

In terms of charges one and seven you are ordered not to approach, contact, or communicate with Child A, or attempt to do so, for a period of 15 years. In terms of charges three and four you are ordered not to approach, contact, or communicate with Child B, or attempt to do so, for a period of 15 years."

16 September 2024