The fresh appeal would be limited to the introduction only of new mitigating circumstances — a Section 27 report into alleged neglect and abuse he suffered in early childhood.
If the court accepts the abuse claims in the report and that there is a causative or contributory link between them and McLean’s offending, his sentence could be reduced by about 20 per cent (two years, two months).
The Crown opposed McLean’s application to resume the appeal saying there was too much of a delay between it and sentencing.
To allow it would undermine the finality of criminal proceedings, prosecutor Ian Auld said. And, permitting belated sentence appeals on such bases as a matter of course would also be detrimental to the Court’s workload.
Mr Auld also noted McLean’s continued denial of the offending could negate any claim about a link to his background. However, the Crown would not take issue with the application if the Court ultimately found there were truly exceptional circumstances.
For Mr McLean, counsel Scott Jefferson said it was only while in custody that his client had a chance to address the abuse he suffered during his early childhood in state care. “His comprehension was slow in coming and not sufficiently crystallised even at the time of the earlier signalled appeal.”
Subsequent consultation with his solicitors had given rise to a Section 27 report being commissioned, identifying a basis on which to contend his background had a causative contribution to his offending.
Mr Jefferson argued the interests of justice favoured reinstatement of Mr McLean’s appeal against sentence for that reason alone.
Delivering the Court of Appeal’s decision, Justice Pheroze Jagose said Mr McLean’s late appreciation of his contended early childhood abuse was unusual but explicable by his access in custody to rehabilitative programmes and other interventions intended to help offenders reintegrate into the community.
Before being able to access those interventions McLean had by his own assessment “blocked out” and “hidden” what he now claimed to have happened to him saying he was “ashamed and too embarrassed” to previously talk about it.
Justice Jagose said the importance of finality in criminal cases had “limited influence” here.
Any risk that other offenders might similarly seek to revisit sentencing would be subject to the court’s scrutiny and granting of necessary leave.
The interests of people impacted by McLean’s offending would only be affected by the knowledge that only some “relatively modest” discount on the substantial sentence was being sought.
The limited scope of the appeal in only addressing Section 27 factors meant it would not require a lot of court resources.
“Even if finality is a good thing . . . justice is better”, Judge Jagose said referring to a citation in the Supreme Court’s decision to continue Peter Ellis’ appeal posthumously.
“Mr McLean’s application essentially is in the interests of justice, to enable any causative aspects of his late-comprehended background to be taken into account on a reinstated appeal against sentence.
“His background may offer mitigating factors distinct from any other considered on Mr McLean’s sentencing, such as his lack of remorse. Or it may not. But the interests of justice are understandably late-emerging factors of potential relevance to sentencing. They should not be excluded from consideration by that late emergence alone,” Justice Jagose said.
