SENTENCING STATEMENTS

“Before I deliver the sentences to each of the 3 accused, I wish to make some general remarks for the benefit of those with an interest in the case. 

The sentencing process requires me to firstly consider the seriousness of the offending in terms of both the blame that is attributable to the accused and the harm which they have caused or could have caused.

I then decide on an appropriate sentencing range, take into account any aggravating or mitigating factors, that is to say factors which justify a greater or lesser sentence, and then arrive at a headline sentence. Additional steps in the sentencing process do not arise in this case.

I require to sentence the accused based on the options available at the time the offences were committed in the 1970s and early 1980s. Those options include probation and community service orders, which are no longer sentencing options for offences committed today.

A number of complainers have submitted Victim Impact Statements to the procurator fiscal and I have seen those and they have been disclosed to defence counsel. I wish to pay tribute to all the complainers who gave evidence in this case. It was clear that some had been giving statements to police over many years. In doing so memories which had been locked away and buried came to the fore and had to be re-lived. The prosecution has been an arduous process for most if not all and they are to be commended for their bravery and fortitude in assisting the prosecution.

Also available to the court are reports on each accused prepared by Social Workers or, in the case of the second accused, a probation officer given that she lives in England. Those reports provide me with detailed information on the background of each accused, an assessment of risk of reoffending and the sentencing options which are available.

With all of that in mind I will turn to the sentences for each accused.

Eileen McElhinney:

The jury found you guilty of 3 charges of cruel and unnatural treatment and 2 charges of assaults on children over a 2 ½ year period. The children’s ages ranged from 5 to 16. The worst examples of your offending involved striking and punching children on the body, causing one to fall to the ground, repeatedly kicking and jumping on a child’s body, forcing children to take a cold shower or sit in a cold bath, seizing children by their clothing, hair or arms and dragging them as well as repeatedly slapping them. Suffering and injury were caused by you. 

These were children who were in Nazareth House because of difficulties experienced in their family lives. They needed, and were entitled to expect, care and nurturing to help them through a difficult period in their lives. You were in a position of trust. You abused that trust by physically abusing them.

The Justice Social Work report in your case states that whilst you continue to deny the abuse of any child you have at least confirmed that you fully accept the outcome of the trial and are willing to comply with any subsequent sentence.

You are assessed as very low risk for re-offending. These offences were committed at the beginning of your vocation as a nun when you were young and the social worker considers it may well be the case that you were highly susceptible to the influence of older and more experienced nuns. There has been no suggestion of ongoing offending in the last 45 to 50 years. Over that time, you have worked as a Social Worker and then as a volunteer, supporting vulnerable individuals. 

Therefore, any sentence is purely for the purposes of punishment as there is no need for rehabilitation or a sentence designed to prevent further crime.

There is a clear recommendation in the Justice Social Work Report for a non-custodial sentence in the form of a community based disposal and in your case I am prepared to propose that as a direct alternative to custody. 

I propose a Probation Order as a cumulo sentence on all 5 charges. During the currency of the order, you must be of good behaviour and must not commit another offence. You must comply with the instructions of your supervising officer and inform them of any change of address or paid or voluntary work which you undertake. The probation order will last for 12 months.

There will be 2 additional conditions attached to the order:

Firstly, you will require to undertake 240 hours of unpaid work to be performed within the next 12 months. You must cooperate fully with the social work department who organises the work and you must perform the work to a satisfactory standard failing which the social worker can send a breach report to the court and if you are found to have breached the order, you can be fined, the order can be revoked and you can be re-sentenced. That includes a sentence of imprisonment.

In addition, there will be a condition whereby your movement will be restricted by requiring you to remain within your home address between the hours of 4pm and midnight each day for a period of 9 months. You will require to present yourself to your front door when the police call to check that you are at home. If you are out with your address when you should be at home without good reason you will be in breach of the order. That will result in a report being sent to the court and, if you are found to have breached the order, the order can be revoked and you can be resentenced. Again, that may include a sentence of imprisonment.

A referral will be made to Scottish Ministers for them to determine whether your name should be placed on the Children’s Register which would prevent you from working with children.

Carol Buirds:

The jury found you guilty of a total of 13 charges, 8 of which involved Cruel and Unnatural treatment of children and 5 involved assaults on children. Your offending spanned a period in excess of 5 ½ years and involved the abuse of children aged 7 to 15. 

The worst examples included repeatedly striking children’s heads off walls, striking them with belts, sticks, rulers and slippers, punching and kicking them to the head and body, forcing soap into their mouths, locking children in cupboards, force feeding them, rubbing urine soaked bedding into the heads of children, forcing them to sit in cold baths and washing them with a floor brush. On many occasions the children were injured and on one occasion severely injured. 

This places your offending in a different category altogether from your co-accused and it is quite rightly acknowledged by your counsel that the custody threshold has been crossed.

Victim Impact Statements have been received from 7 of the complainers who you abused or assaulted. They make harrowing reading. Some continue to suffer from PTSD and other mental health conditions as a result of the abuse. Medication and other forms of treatment have been and still are required. Some speak to being suicidal, requiring one of the complainers to be in hospital for a year and left her mute for a period of 5 years. They found the whole experience of having to give evidence in court extremely traumatic, triggering memories of the events which you have been convicted of. Relationships with family members have been affected and some describe an inability to form relationships, or trust other people, or show emotion to people they love even now, 50 years after the abuse. Marriages have broken down and employment opportunities lost. Some describe their lives as having been ruined by what you did to them.

The seriousness of your offending is extremely high in terms of culpability and harm caused. The Probation Service report prepared in your case states that you do not take any responsibility for your offending. You are in denial and have shown no remorse whatsoever. You tried to cast doubt on the truthfulness of the complainers and told the probation officer that all the children came from 2 families and may have corroborated the accounts of one another. The truth of the matter is the charges which you have been convicted of relate to 12 named individuals from 9 different families and were perpetrated in 2 different care homes many miles apart. It was obvious during the trial, and it is obvious from the Victim Impact Statements that having to give evidence about what you subjected them to, and having to be questioned on those events, has been extremely detrimental to the mental health of many of them. 

I have taken into account everything said by your counsel in mitigation and everything said in the Probation Service Report. This includes your age and the work you have done over the last 50 years. You are a first offender and the Probation Officer assesses you as being at low risk of any form of future offending, particularly due to the length of time since these offences were committed and the fact you no longer work in a childcare setting. The risk would be higher if you were to ever work with children again. The sole purpose of any sentence would therefore be punishment and there is no need for a sentence to rehabilitate or prevent further offending. I acknowledge there is a statutory prohibition on me imposing a custodial sentence unless I consider that no other method of dealing with you is appropriate. 

Few alternatives to custody are available – the only one which the Probation Service deems you suitable for is a Community Service Order with a maximum of 300 hours unpaid work. You have said you would like the opportunity for supervision and would comply with probation but the report states there is no focus for probation. It is stated on your behalf that you would be willing to have your movements restricted and monitored with the fitting of a tag. You have indicated that you are not willing to comply with a compensation order to pay your victims compensation. It is also submitted on your behalf that decisions from superior courts have resulted in a clear trend of not imposing custodial sentences in similar cases.

I have fully considered and taken into account what was said in those other court decisions. Some involved offending which in my opinion was less serious than your offending including the Appeal decision where the judges observed that the very fact of conviction of elderly people well over 4 decades past the commission of their crimes is punitive and serves to mark the community’s disapproval. I have also taken into account the community-based sentence imposed by the High Court last month in a case involving offences which were broadly similar in seriousness to your case. That decision is being appealed by the Crown on the grounds of undue leniency. I do not place any importance on the fact the decision has been appealed but nor do I do interpret any of these previous decisions as preventing a custodial sentence being imposed where it is appropriate to do so. Whether such a sentence is appropriate depends on the facts and circumstances of the individual case.

There is some offending which is so serious as to render community-based disposals inappropriate. This is such a case. There is no appropriate sentence other than a custodial one. Were it not for the mitigation put forward by your counsel, I would have been of the view that the appropriate cumulo sentence on all 13 charges was one of 30 months imprisonment. Taking all mitigating factors into account, I am modifying that to reach a headline sentence of 15 months imprisonment. You are therefore sentenced to a cumulo sentence of 15 months in prison, commencing from today’s date.

In addition, a referral will be made to Scottish Ministers for them to determine whether your name should be placed on the Children’s Register which would prevent you from working with children.

Dorothy Kane

The jury found you guilty of 2 charges of cruel and unnatural treatment of children over a period in excess of a year. You seized a child aged around 13 years of age, dragged him along a corridor, restrained him by placing your knee on his chest, seized his hair and failed to intervene when another person assaulted him. You forced another child, aged around 10 into a cupboard and locked him in there. 

I recognise you are a first offender. Whilst the complainers have been caused unnecessary suffering and injury, these offences, in comparison to your co-accused’s convictions, can be considered the least serious. 

You are assessed as being a low risk for re-offending. You are little or no threat to public safety. In the whole circumstances of your case, including your age and medical conditions, a community disposal is appropriate. The Justice Social Work Report recommends a community service order. The social worker has indicated that suitable work can be found for you having regard to your personal circumstances, so I am going to propose a community service order as a cumulo sentence for both charges as a direct alternative to imprisonment. I will ask you at the end whether you understand and agree with what I propose.

The order will require you to undertake 150 hours of unpaid work within a period of 9 months. You would require to fully cooperate with the social worker who organises the work, turn up to perform the work and ensure the work is performed to a satisfactory standard. If you fail to do so the social worker can submit a breach report to the court and if you are found to have breached the order, it can be revoked and you can be re-sentenced for these offences. That can include a custodial sentence.

As with the other accused, a referral will be made to Scottish Ministers for them to determine whether your name should be placed on the Children’s Register which would prevent you from working with children.”