SENTENCING STATEMENTS

On sentencing, Sheriff Principal MacDonald told Booth:

“Mr Booth you have been found guilty of a contravention of S7 of the Sexual Offences (Scotland) Act 2009. This is an offence which consists of communicating indecently with another person.

I have found that you communicated indecently with Mrs J a female employee of yours by directing sexual verbal communications to her.

You employed Mrs J as Housekeeper.  She started her employment with you in August 2022 You prepared a document which you called an employment contract setting out her duties when she started in your employment. In that document it was specified that, as part of her duties she would perform a massage on you once a week. During negotiations prior to her accepting employment with you she told you that she had no experience in masseuse work, which of course is a particular skill, but you insisted this was part of the duties of the job. She agreed to come and work for you and reluctantly agreed to accept this as part of her duties. Because your house is so isolated she required to live in your home during her employment.

Mrs J gave evidence to say that she became concerned about your behaviour towards her during the first massage sessions and spoke to her husband to express her concerns. Her husband wanted her to leave your employment because of what she had told him, and he told the court that he was concerned for her safety. Mrs J wanted to carry on working for you because the money was good, and she needed that money to send back to her family in her home country. She decided to stay but agreed with her husband that she would record the massage sessions on her phone to try and ensure her safety. She did that, and we have heard the recording of some conversations, from her mobile phone which she had in her uniform pocket during massage sessions.

In one of the recordings you are clearly heard to ask her “Do you know how to spank?” and suggesting that she might do so to you. You can also clearly be heard to talk about what you described as a ‘happy ending’ to a massage and then you explain using a graphic description what you meant by that. You were referring to sexual stimulation by hand resulting in ejaculation. You also suggest to her that an employer might offer an employee payment for doing such a thing. You can also clearly be heard asking Mrs J about previous sexual relationships and asking about the size of her ex-husband’s penis.

You were her employer; you were lying naked under a towel while she was massaging you at the time of the conversation. You and Mrs J were alone in the room together whilst these parts of the conversation were taking place

When you gave your evidence, you tried to say that you had a reasonable belief that she had consented to you saying these things to her.

It is clear from the recordings that these topics were introduced by you to her, without any encouragement on her part or any indication that she would like to talk about sexual matters with you. Mrs J told us in court that she had not consented, and it can clearly be heard from the nature and tone of her responses to your sexual utterances that she did not so consent.

I found that you had no reasonable belief at all that she consented to these discussions.

This offence is a complete abuse of trust.

You were her employer. She was vulnerable in a number of respects. She was alone in a room with you as you said these things. You are a big man; she is a small woman. You were naked. You held a position of power in a number of ways but principally because she was your employee living in your home in an extremely isolated location miles away from her husband and family. You abused that position of power. You thought that nobody would know that you were saying these sexual things to her.

I had no difficulty in finding that you did so for your own sexual gratification.

Mrs J was considerably affected by your behaviour and eventually left your employment because of it. She told us she was frightened.

Now when it comes to sentence, I have the Justice Social Work Report and the Moving Forward to Change report and I take into account everything you said to the social workers during the preparation of these Reports. I note you have expressed no remorse. I also note that you have been assessed by the social workers as being at a high risk of reoffending, but I do take into account the comments made by your Agent in this regard.

Firstly, I will deal with the application lodged by the Crown seeking to have you made subject to a Sexual Harm Prevention Order (SHPO), for a minimum period of 5 years.

This is the first time the Crown have prosecuted you in Scotland for any offence. The offence is a summary prosecution for an extremely unpleasant but non-contact sexual offence against one person. Summary prosecution is the lowest level of prosecution in Scotland and carries the lowest level of penalty upon conviction. This ties my hands considerably when it comes to sentence.

The Crown have not placed before me any previous convictions of yours, which they are obliged to do if they want me to take those into account for sentencing purposes. That looks as if that was a mistake, given the terms of the Justice Social work Report. I am not told much in the SHPO application about why the Crown believe this Order is necessary, other than the Police say so.

I do however take into account the comments made by the PF Depute who makes reference to the Reports before the court today. I am being asked to pose significant restrictions on you for a period of 5 years including restricting quite heavily your access to electronic devices and internet use and allowing the Police to enter your home without notice or warrant. I am not told why this is necessary. And of course, this offence against Mrs J did not involve the use of the internet or any digital communication. Whilst I appreciate the seriousness of this offence for Mrs J and I see the social work assessment that you pose a high risk of re-offending; I have to consider whether it would be proportionate to impose a SHPO in circumstances where the Crown are only prosecuting you for a single summary level offence. They may have other information about you, but I cannot take that into account for this sentence. So in all the circumstances the Crown have not persuaded me that the imposition of the SHPO is necessary to protect the public as part of the sentence for this case. This is because you are already subject to civil restrictions by way of a Trafficking and Exploitation Order and you are currently on the Sex Offenders register.

Also, I understand you are subject to bail conditions for another newly prosecuted matter which restrict your freedoms, and I am about to impose a sentence which will place you under more scrutiny by the authorities for a period of time. On that basis I will decline to order a Sexual Harm Prevention Order for 5 years as moved. This does not mean that you will go unpunished or unsupervised, however.

In relation to sentence, first of all I note as I have already said this is a criminal prosecution under summary procedure which is the lowest level of prosecution in Scotland. The Crown have chosen to prosecute you at this level. In summary cases Parliament has laid down a presumption against sentences of imprisonment for cases prosecuted on summary complaint and all Sheriffs are legally obliged to have regard to that presumption and seek to avoid imprisonment in summary matters, such as this one.

As already stated, there are no previous convictions before me which means that I must treat you as a first offender for the purposes of sentencing this matter. If there had been previous convictions placed before me, I could have taken them into consideration and I could have imposed a more significant sentence as a consequence.

Taking these restrictions on my sentencing powers into account along with the nature of the offence but also considering the aggravating factors of the offence I will sentence you to carry out a community-based sentence. This will still have an element of punishment and will have the added benefit that you will be subject to the scrutiny of the authorities for a longer period than if you were sentenced to a short period of imprisonment. If you were sent to jail you would be released in a very short time. I am going to make you subject to a sentence of this court for a lot longer by imposing a community sentence instead.

You will be required to carry out a Community Payback Order with the following requirements

Firstly, there will be a supervision requirement for a period of 2 years, which will require you attend appointments with your local social work department and follow their direction and guidance for that length of time. Supervision involves regular engagement with a social worker to address and change offending behaviour, in order to reduce re-offending and protect the public.

Secondly, there will be a programme requirement requiring you to undertake the Moving Forward to Change programme which is a programme designed to analyse and rehabilitate sex offenders like you.

Thirdly, there will be a compensation requirement requiring you to pay the sum of £2000 to Mrs J as a small measure of compensation for the effects of this offence upon her. I am required to give you 18 months to make that payment, and you will pay it in one lump sum.

This Community Payback Order is imposed as a direct alternative to custody which means that if you do not comply with any small part of it, you can be brought back before the court and sent to jail instead.

Do you accept a Community Payback Order in those terms?

In addition, you will be made subject to the Notification requirements of the Sexual Offences Act 2003, which is commonly known as being placed on the sex offenders register for a period of 2 years which is the period of time which must apply in accordance with the law, I have no discretion to extend that. This involves registering your name and address with the Police and advising them of any changes to those. You will be given full details of the notification rules. It is your responsibility to follow those rules, and you will be committing a criminal offence if you do not do so.”