A sheriff who jailed a teacher for engaging in sex acts with two girls ‘erred’ when he decided to send the man to jail, a court has heard.
Lawyer Ann Ogg said that Sheriff Philip Mann failed to properly consider Kieran Malcolmson’s personal circumstances when he decided to jail him for 15 months.
The Court of Criminal Appeal in Edinburgh heard on Tuesday how Malcomson, 36, should have been given a non-custodial sentence.
He was convicted earlier this year after a trial at Aberdeen Sheriff Court.
Jurors convicted him of being in a position of trust as a schoolteacher when he kissed and engaged in sexual activity with a girl while he was employed as a teacher at a school in Shetland.
Malcolmson was also found guilty of a similar offence of engaging in sexual activity with or directed towards another pupil at a school in 2018.
He kissed the girl on the mouth and repeatedly asked her to accompany him to a “dark and secluded area”.
‘He lost his job and can never regain that’
On Tuesday, Ms Ogg told judges Lord Pentland and Lord Doherty that Malcolmson, could never teach again because of the convictions.
She added: “The appellant in this case has no previous convictions.
“He has never before received a custodial sentence. I submit that in determining that no other sentence other than custody was appropriate the sheriff has erred.
“I submit that you have to look at the consequences of which the convictions have had on this particular appellant.
“My lords will note that not only was he suspended for two and a half years because of these charges, he was ultimately dismissed.
“He can never resume that employment again given these convictions.
“He was a man who was enjoying his job; he was proud of his job; he was held in very high regard in the community.
“My lords will see that not only was he held in high regard by the community – a small community but he also coached an adult football team, he was chair of the local community council – all of that was lost to him because of these convictions.”
During proceedings earlier this year, his then-lawyer John Keenan said Malcolmson didn’t groom his victims.
He added: “On the contrary, these appear to have been matters that occurred really fairly randomly on an impulsive basis.”
‘Written decision as soon as practicable’
Ms Ogg also told the court that at the time of the offences, Malcolmson was struggling to come to terms with a marriage break-up.
He also sought help for tackling an alcohol problem – the lawyer told the court that there were no current concerns about his alcohol use.
She added: “The appellant has lost his job and can never regain that.
“The impact of the custodial sentence on his ex-partner and child has been significant.
“The child has difficulty coming to terms with her father not being present or assisting in care.”
The judges told Ms Ogg that they wanted time to consider their decision.
Lord Pentland added: “In order for us to give full consideration of the material which has been placed before us, both in written form and in the oral submissions made to us this morning, we will reserve judgement and we shall therefore make avizandum and issue our written decision as soon as practicable.”
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