Freed: man who tried to rape girl, 5

A MAN who as a schoolboy repeatedly tried to rape a five-year-old girl has been allowed to walk from court by a judge who said not every serious sexual offence needed a jail sentence.

James Weir, 21, from Fife, had been fostered to escape a "highly sexualised" home life, and, aged 12, regularly abused the girl while receiving sex education at school. He described the abuse as "an experiment".

Lady Smith told Weir at the High Court in Edinburgh that she was prepared to put him on probation for two years. She said any right-thinking person would find his offence abhorrent and would grieve for the "loss of a five-year-old's innocence and the breach of her right to be nurtured and protected".

However, Lady Smith added: "In your case, that is not the whole story ... it is all too easy to assume that the only appropriate sentence for the crime of rape or attempted rape must be a custodial one. But if any court were to do so, it would fail in its duty to consider the whole facts and circumstances of the individual case. Your case is very unusual ..."

The case has once again highlighted the issue of appropriate sentences for sexual offences. Earlier this week, UK Justice Secretary Ken Clarke became embroiled in a row over rape sentencing.

Weir, a sales assistant, of Dean Road, Kirkcaldy, admitted attempting to rape the girl on various occasions between January and September 2002.

The advocate-depute, Ashley Edwards, said it was several years, while the girl was being counselled by a psychologist for an unrelated problem, before the offence came to light.

Weir, who lived with a partner and had no previous convictions, was interviewed and initially denied the allegations, but then became upset and confessed. He said he had thought of his behaviour as an experiment.

The defence solicitor-advocate, Gordon Martin, said he had never seen such favourable background reports as those prepared for Weir.

Lady Smith said that if the matter had come to light at the time, she suspected it would have been dealt with through the children's hearing system rather than going to court.

"Sentencing is not a matter of imposing the same sentence for every commission of a particular crime ... regard must be had to what actually happened, why it happened, what were the personal circumstances of the offender and how the offender has conducted himself since then," the judge continued.

Background reports disclosed a "chaotic upbringing" in which Weir's mother left home when he was seven. He had lived for a while with his father and stepmother in a "highly sexualised" household where he was exposed to pornography and sexual activities. He was taken into care.

"The offences to which you have pleaded guilty occurred about the time when you were receiving sex education at school. You say you had no idea at the time as to what was and was not sexually appropriate and, given the account of your childhood, that would not be at all surprising," said Lady Smith.

She noted that Weir had made real efforts to empathise with his victim.

There was no suggestion that he presented continuing risk.

She ordered that Weir complete a programme of offence-focused work, and undertake regular risk assessments. He was put on the sex offenders' register.John Lamont, justice spokesman for the Scottish Conservatives, said: "Clearly this has been a very difficult case, but without going through all the evidence it is difficult to comment in any great details.

"It is very important for the courts that this kind of behaviour is simply not acceptable and the judge has got to be sure that this has been an appropriate sentence."

David Sinclair, spokesman for Victim Support Scotland, said: "Our sympathies are naturally with the victim in this case.

"However, we do recognise that the judge and the court are the ones in possession of all the facts and evidence, and that that is where the decision on the most appropriate sentence must rest."

LABOUR LEADER ATTACKS SENTENCING PLANS

THE UK government's plans to cut prison sentences in half for offenders who plead guilty risk creating more victims, Labour leader Ed Miliband has warned.

He said that the government's prison and police policies were driven by the need to cut costs, not the need to make the streets safer.

Mr Miliband's warning came days after Justice Secretary Kenneth Clarke admitted he had "upset a lot of people" with his comments on the effect of the sentencing proposals on sex offenders.

Downing Street has raised doubts over whether the plea-bargaining reforms will go ahead as planned by the justice secretary, telling reporters that ministers are "still listening" to critics of the ideas, and have not yet finalised their proposals.