SENTENCING STATEMENTS

On sentencing, Lord Arthurson said:

"Kevin Owen Gillon Ferguson, on 10 May 2024 at a preliminary hearing at Glasgow High Court, you tendered pleas of guilty to charges involving the repeated sexual assault of a young girl then aged between 10 and 11, as she sat in a car booster seat, together with the repeated anal rape and, on one occasion, the attempted vaginal rape of a young girl then aged 12.  You were aged 35 to 36 and aged 41 during the respective offending periods related to each charge.  The gravity of these crimes is considerable, as is the level of breach of trust on your part involved in the commission of them.

You are now aged 43.  You have accrued to date 18 groups of previous convictions and served 10 custodial sentences.  You have two High Court convictions for aggravated violence and a separate similar conviction at sheriff and jury level, together with another sheriff and jury conviction for violence and domestically aggravated offending.  In 2012 it is also of note that you were convicted of a sexually aggravated assault. For the record, it has been established that the last conviction on your record, dated 28 May 2019, erroneously includes a reference in charge two thereof to a knife.

Various reports are now available in respect of you. A criminal justice social work report dated 18 June 2024 and a Tay Project assessment report dated 17 June 2024 were made available for an adjourned diet on 21 June 2024. In that corpus of risk assessment you were assessed as presenting a high risk of serious harm should you be at liberty and have unsupervised access to children. The author of the background report referred to evidence of planning and the creation of opportunities to offend in respect of the commission by you of the index offences. You were also assessed in that report as presenting a high risk of violence. The author further noted a lack of protective factors which could reduce future risk to the public. In the light of that material the court on 21 June 2024 made a risk assessment order in terms of section 210B of the Criminal Procedure (Scotland) Act 1995.

Following sundry adjournment procedure the case calls today with a full Risk Assessment Report dated 2 October 2024 now available. That report has been prepared by an accredited risk assessor. It is extremely detailed. The author of the report concludes that you have both an antisocial personality disorder and a psychopathic personality disorder, as well as some borderline and narcissistic personality disorder traits. She further concludes that a robust treatment and risk management plan cannot be designed at present which would be effective in reducing your risk of violence in the short to medium term. Without such a plan, the risk assessor advises that the most likely and imminent scenario would be serious violence involving you repeating similar sexual abuse to that committed by you in the offending presently before the court. The risk assessor further states that equally likely is a scenario whereby you will use serious physical violence towards a male adult. There are few protective factors present in your case, it is reported, and you have been assigned a high level of risk. You appear to have a set of pathological personality traits which make you highly resistant to change. You have accepted only superficial responsibility for your offences. You have no empathy for your victims.

A report dated 24 February 2025 prepared by Professor MacPherson, consultant forensic clinical psychologist, has additionally been furnished to the court by those representing you. That report records the view of the author which is to the effect that you present with a high level of risk of violence including violence towards intimate partners and a high level of sexual violence. The author confirms diagnoses of anti-social personality disorder and narcissistic personality disorder and notes that you present with a wide range of traits and behaviours on the psychopathy checklist.

I have listened carefully to the submissions of your counsel in mitigation this morning, in contending for the imposition of an extended sentence, and in particular note what has been said by him regarding your early acceptance of responsibility by way of your guilty pleas; his observations upon the appropriate disposal to be selected by the court, having regard to your criminal antecedents and looking at matters in the round; and what has been set out regarding the prospects for your engagement with programmes in the conclusions of Professor MacPherson’s report.

In respect of the offending before the court, this plainly represents an escalation and indeed a deeply concerning diversion of your prior criminality.  Your predatory sexual offending against young children in this case, taken with the level of breach of trust and planning involved in that offending, characterise the index offending in this case as exceptionally grave. In addition, you have a truly appalling criminal record, in particular at indictment level.

All of that having been said, however, as the management of this case has developed, standing the terms of the comprehensive and cogent risk assessment material before the court, it has now become plain that the primary sentencing issue before the court is whether the risk criteria expressed in section 210E of the 1995 Act have been established and whether you can accordingly be properly located within that cohort of exceptional offenders for whom an order for lifelong restriction is the only appropriate disposal. Having regard to the nature and gravity of the index offending and to your criminal antecedents, together of course with the risk assessment material now available, I have concluded that the nature and gravity, and indeed the pattern, of your offending behaviour are such as to demonstrate that you, if at liberty, will seriously endanger the physical or psychological well-being of members of the public at large, in particular female children and male adults.

In all of these circumstances, the court now makes on this indictment, on charges one and three, an order for lifelong restriction in respect of you. That order constitutes a sentence of imprisonment for an indeterminate period. The court also requires to fix what is referred to as the punishment part of your sentence, being the period which you must spend in full in prison before you can apply to be released on licence. Had I not been imposing an order for lifelong restriction today, the headline custodial term of the determinate sentence which I would have selected on this indictment would have been, on an in cumulo basis, a period of 15 years. Had each charge attracted an individual sentence, 5 years would have been attributed to charge one and 11 years to charge three, returning a total period of 16 years. To take into account the totality principle, however, I have reduced the notional cumulo headline tariff to the said period of 15 years. The part of this notional headline period which would represent an appropriate period to satisfy the sentencing requirements of retribution and deterrence is in my view 13 years. Taking the timing of your plea of guilty into account at this stage of the sentencing exercise, I will now discount that latter period of 13 years to one of 10 years. Having then applied the well understood statutory formula, I accordingly propose now to set the punishment part of this disposal at 5 years.

Please be clear that the sentence imposed by the court today is not a sentence of 5 years imprisonment. It is instead an order for lifelong restriction, which is itself a sentence of imprisonment for an indeterminate period. You will not be eligible to apply for parole until the punishment period has been concluded and you must not assume that you will be automatically released at that time. You will be released only when the Parole Board for Scotland determines that it is no longer necessary for the protection of the public that you should continue to be confined in prison. When you are released, if indeed you are ever released at all, is in law a matter entirely for the Parole Board to consider in due course.

The sentence imposed today will be backdated to 20 July 2023, being the date of your initial remand into custody in these proceedings.

Standing the terms of this disposal, I additionally confirm that you will now be subject to the notification requirements of the Sexual Offences Act 2003 for an indefinite period.

On Crown motion, the court further grants non-harassment orders for indefinite periods in the specific terms discussed and minuted at this hearing in respect of both of the named complainers.

Finally, the court on Crown application makes a sexual harm prevention order in respect of you, again in the terms minuted, as craved in the Crown application, all in terms of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 section 11.  

For the avoidance of doubt, I confirm that these additional ancillary orders will all run from today."