SENTENCING STATEMENTS

Upon sentencing, Lord Arthurson made the following remarks:

"Shaun James McKenna, on 27 February 2026 at a preliminary hearing before a now retired judicial colleague at Glasgow High Court you tendered pleas of guilty to two charges libelling the contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 in respect of lewd, indecent and libidinous practices and behaviour towards two children aged between 12 and 16;  one charge libelling the contravention of section 6 of the Sexual Offences (Scotland) Act 2009 in respect of intentionally causing an adult female to look at a sexual image;  and one charge libelling the contravention of section 1 of that 2009 Act in respect of the rape by you of a 13 year old girl.

"Each one of these offences merit the imposition of custodial sentences. The last-mentioned charge involved a crime of particular gravity.  Your victim was aged 13 at the time and you were aged 30.  You were in a relationship with her aunt and were accordingly in a position of trust.  You had been on a camping trip and taken all other family members home.  On your return to the tent you committed a violent rape upon the complainer, which rape involved digital and penile penetration.  While your victim cried as you raped her, you made threats towards her and family members in the event that she disclosed the rape.  It is of note that your sexual offending against another of your victims, when she was aged 14 and you were aged 18, also involved digital‑vaginal penetration.

"Your personal circumstances are of an exceptional nature.  You are now aged 36.  You reside by necessity in a care home, having been diagnosed with Huntington’s chorea in January 2022.  This home specialises in caring for people with Huntington’s disease, which is an inherited neurodegenerative condition which causes the degeneration of the nerve cells in the brain.  There is no cure for this condition.  It has profound effects on many aspects of a sufferer’s life, including matters such as life expectancy.  Symptoms include memory loss, depression, loss of concentration, impulsivity and involuntary movements.  It is a progressive and life limiting condition.  Your own circumstances are that you require independent assistance with eating and personal care.  You are likely to experience further deterioration over the coming years.  You presently do not leave the care home alone, but are at all times subject to one to one supervision.  You have a clear and significant cognitive impairment. You were a serving soldier but were medically discharged in October 2023.  You have two children, with whom you have no contact.  You are subject to welfare and financial guardianship orders.  Your welfare guardian considers that you are currently in the most appropriate placement available. This placement provides a significantly supportive but restricted care framework. You have attended court today accompanied by care home staff.

"I have listened with particular care to the submissions of your counsel as these have been advanced in mitigation this morning, and note in particular what has been said regarding the report dated 9 July 2026 prepared by the instructed consultant neurologist in this case, particularly certain pertinent passages taken from section 8 of that report on your condition and prognosis, and the concern of that consultant neurologist as to whether you can at all be cared for in any custodial setting as your condition deteriorates.

"This is a far from routine sentencing exercise.  In reviewing the sentencing options before the court it is plain that the only disposal commensurate with your offending in this case, in particular the crime of rape libelled in charge 5, is a sentence of imprisonment, and that the gravity of that offending, with a high tariff custodial period necessarily imposed even after any utility reduction for your early plea, would inevitably require you to serve that sentence as a long‑term prisoner.  The court has been advised that HM Prison, Edinburgh, has been identified as the most suitable establishment within the SPS estate to accommodate your needs in the event of the imposition of any custodial sentence.

"It is not at all clear to me, however, that the necessary intensive and specialised nursing care, which will doubtless require over time to become increasingly acute and intense, can realistically be provided within the prison estate.  In any event, the very real question arises whether it would be in the public interest to impose a custodial sentence, as it would in essence involve a transfer of the burden of care from a nursing home which offers specialised care for this condition to the relevant prison authorities.  Further, as I have reflected at length upon what sentencing purposes could and would be achieved by imprisonment, I have concluded that not one would be so engaged.  The imposition of custody would indeed on one view, in your current situation, and with your deteriorating and life-limiting prognosis, be a far worse than a mere box ticking exercise in which the broader public interest has been set to one side; it would be a vindictive act in which I am simply not prepared to participate.

"In these circumstances I have to consider whether to follow the recommendation in the available reports of in effect ongoing annual deferral, in which the situation plainly cannot improve, or to grasp the nettle and impose a final order at this juncture, thereby bringing these proceedings to an end.  I have decided, having concluded on the whole material available to me that you will never be fit enough to be sentenced to a custodial disposal, to adopt the latter course, and to impose today a 3 year community payback order with two conditions only, namely that you be supervised, and reside at your present care placement, throughout the duration of this order and that you comply with all requirements made upon you by those supervising your order. As you are unable to leave without one to one supervision, and have to date made no attempt to do so, I have determined that there would be no utility in imposing any additional restriction of liberty component.

"You will, however, as a consequence of this disposal, be made subject to the notification requirements of the Sexual Offences Act 2003 Part 2 for the whole period of this order, which will run from today.

"I now require you to confirm, through your counsel, that you understand what I have said to you and that you accept the terms of the order which the court is imposing today.

"Finally, I wish to make it crystal clear that the disposal of the court today is borne out of a set of circumstances which are unique in my experience as a sentencer. You have left behind you a trail of devastated lives. Your victims experienced real trauma at your hands at the time of your offending against them, and their suffering continues to endure and the bespoke disposal of the court in this case should not in any way be read as suggesting that the court does not acknowledge that ongoing trauma."

 17 July 2026