Teacher jailed for sexual activity with pupils has sentence cut by three months

A former Shetland teacher found guilty of sexual activity with two pupils has had his sentence cut by three months after an appeal.

Kieran Malcolmson had appealed his 15-month jail term which was imposed by Sheriff Philip Mann.

Lord Pentland and Lord Doherty listened to submissions from Malcomson’s lawyer at a hearing of the Court of Criminal Appeal last week, and a written judgement has now been issued.

Malcolmson’s sentence has now been reduced to 12 months by the appeal judges who found the term was “excessive”, but dismissed the argument it was inappropriate.

A remote jury at Aberdeen Sheriff Court found the 36-year-old guilty of being in a position of trust as a schoolteacher and engaging in sexual activity other than sexual intercourse with or directed towards a pupil in 2009.

He kissed and engaged in sexual activity with the girl while he was employed as a teacher at a school in Shetland.

And Malcolmson, who was also placed on the Sex Offender’s Register for a decade, was also found guilty of a similar offence of engaging in sexual activity with or directed towards another pupil in 2018.

He kissed the girl on the mouth and repeatedly asked her to accompany him to a “dark and secluded area”.

Both offences took place outside of school and Malcolmson had denied the charges against him.

Dismissed from job after conviction

He was suspended from his job after the 2018 offence came to light, and was dismissed in June.

At his sentencing hearing his lawyer John Keenan had argued for his client to receive a community payback order, and said the offences had occured “fairly randomly.”

Speaking during the appeal hearing solicitor advocate Ann Ogg argued the custodial sentence imposed inappropriate.  And if that argument was rejected, she submitted the length of the custodial sentence was “excessive”.

She described the offences as “impulsive”  and said there was “no suggestion” of grooming behaviour.

Ms Ogg also highlighted that Malcolmson had no previous convictions prior to the ones he was found guilty of. And said the sentencing sheriff had “erred” when deciding no other sentence than a custodial one was appropriate.

‘He did not admit offences…and continues to protest innocence’

The court had heard of a report from the sentencing sheriff to the appeal court said there were elements of premeditation in the offences.

In the first case the sheriff’s observation was Malcolmson being alone with the girl was the element of premeditation. In the later offence it was suggesting the girl accompany him to a dark and secluded place.

The written judgement from Lord Pentland states: “We consider that the sheriff was well-founded in his view that the offences involved some degree of premeditation on the part of the appellant.

It went on to say: “It is important also to note that the appellant has expressed no remorse for what he did. He did not admit the offences and he continues to protest his innocence. The victims required to give evidence.”

However, Lord Pentland said they accepted there was no grooming of either victim.

The judgement also stated: “The purpose of the statutory offences of which the appellant stands convicted is to protect impressionable young people under the age of 18 from the possible consequences of infatuation with their teachers and others who are entrusted with their care and welfare.

“The aim of the legislation is to control the sexual activities of persons who hold positions of trust and who have responsibility for children.

“Regrettably, it is a not uncommon feature of such cases that the offender is a person, like the appellant, who is otherwise of good character.”

15-month jail term was ‘excessive’

Five years is the maximum penalty for the offences Malcolmson was convicted of.

The judges said they agreed with the sheriff that due to the nature of the offences custody had to be imposed.

However, they said they would quash the original sentence and impose one of 12 months instead.

In the judgement it states: “Young persons must be protected from sexual abuse and exploitation by persons entrusted with their care, welfare and education.

“Taking account of the aim and purpose of the legislative provisions, and all of the other relevant factors, we are satisfied that the sheriff was right to take the view that the nature and gravity of the offences, taken together, could only properly be marked by the
imposition of a custodial sentence.

“We are persuaded, however, that the length of the custodial term selected by the
sheriff was excessive.”