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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 39
HCA/2024/318/XC
Lord Doherty
Lord Armstrong
Lord Beckett
OPINION OF THE COURT
delivered by LORD DOHERTY
in
Crown Appeal against Sentence
by
HIS MAJESTY'S ADVOCATE
Appellant
against
CM
Respondent
Appellant: P Harvey AD; Crown Agent
Respondent: S Gilbride; Keith Leishman & Co
24 September 2024
Introduction
[1]
The respondent was convicted of four charges of rape. On 27 May 2024 (the day
before the court issued its opinion in HM Advocate v Fergusson [2024] HCJAC 22,
6 years' imprisonment.
2
[2]
The Crown appeals in terms of sections 108(1)(a) and 108(2)(b) of the Criminal
Procedure (Scotland) Act 1995 against that disposal on the ground that it was unduly
lenient.
The circumstances of the offences
[3]
Charges 1 and 2 were committed against the respondent's partner. Each charge
involved rape on a single occasion by penile penetration of the complainer's vagina. They
had been in bed together and the complainer had responded negatively to the respondent's
sexual advances, but he had ignored that and had gone on to have intercourse. He had used
a condom. The complainer had "frozen" while this was happening.
[4]
Charges 4 and 5 each concerned rapes on various occasions of a subsequent partner.
Both charges contained aggravations in terms of section 1 of the Abusive Behaviour and
Sexual Harm (Scotland) Act 2016. These rapes were committed during two periods. During
the first period there were various times when the respondent initiated sexual intercourse
and the complainer said that she was too tired or "not tonight", but the respondent
continued and the complainer "just let it happen". On these occasions the respondent knew
that the complainer did not want to have sex. It happened perhaps once or twice a week for
about 6 months until the complainer was 3 months pregnant and she returned to live with
her parents. The second period began with a rape when the complainer was heavily
pregnant. She had told the respondent that she did not want to have sex because she was
concerned it might harm the baby. The respondent said that he had done a google search
and that it would be okay. The complainer said sex occurred "because she had no other
options". The next rape took place between 4 and 6 weeks after the baby's birth. The
3
respondent indicated to the complainer that he wished to have sex, but she was still
uncomfortable after the birth and said she did not want to. She had had an episiotomy and
she still had stitches. Undeterred by her negative response, the respondent attempted to
penetrate her vagina, ultimately managing to do so. This caused the complainer pain and
distress. There were two or three further occasions when he had sex with her when she did
not want to. On one of those occasions he said that she could not deny him.
[5]
The respondent's evidence was that all sexual relations with the complainers had
been consensual. He was aged 19 at the time of the offences against the first complainer. He
was 23 during the first period of offences against the second complainer and 24 during the
second period. He was aged 27 at the time of sentencing.
The criminal justice social work report and the victim statement
[6]
The criminal justice social work report indicated that the respondent had a pro-social
background. He retained the support of his parents, his brother, his grandfather, and his
current partner of some 18 months. He had no previous convictions or outstanding matters.
He had a good employment record. He had no prior issues with alcohol or drug abuse. The
risk of further offending was assessed as being moderate. A victim statement by the first
complainer dated 23 May 2024 stated that after the rapes she felt worthless. She thought
about suicide. She self-harmed. She was diagnosed with post-traumatic distress disorder
and was prescribed anti-depressants. She was signed off work for a month, and for some
time after her return to work she worked reduced hours. She attended counselling, which
she said made her realise she was a survivor. Before that she had blamed herself and felt
ashamed and embarrassed, but she no longer felt that way. She realised the respondent was
4
to blame, and that nothing she could have said or done would have changed what he did.
There was no victim statement from the second complainer.
The appeal
The judge's report
[7]
In the judge's view the offences were very serious. There was significant
psychological harm caused to the first complainer. The judge took account of the
respondent's culpability and the likely harm caused. He had regard to the statutory
aggravations to charges 4 and 5 in arriving at the sentence, but he did not indicate whether
the sentence he imposed was different from the sentence which he would have imposed had
those offences not been so aggravated. He took account of the respondent's age at the time
of the offences - particularly his young age at the time of the offences against the first
complainer. He also had regard to the respondent's pro-social background, his supportive
family, his supportive partner of almost 18 months, and the absence of previous or
subsequent offending. He had a son with the second complainer and was eager to build a
relationship with him. While because the respondent was 27 at the date of sentencing the
Sentencing Young People guideline did not apply to him, in the whole circumstances it
remained relevant to take account of his age and maturity at the time of the offences and to
have regard to the prospects of rehabilitation.
[8]
With the benefit of hindsight and further reflection, and having now had the
advantage of considering HM Advocate v Fergusson, the judge acknowledged that the
sentence was lenient. Whether it was unduly lenient was a matter for this court.
5
Submissions for the Crown
[9]
The sentence was unduly lenient for three reasons.
[10]
First, it was not suggested that the judge had erred in having regard to the mitigating
factors which he mentioned in his report, but he failed to give due weight to the seriousness
of the respondent's course of conduct against two ex-partners and to the serious harm which
the first complainer suffered. Inadequate weight was given to the large number of rapes of
the second complainer, and to the fact that two of them occurred when she was particularly
vulnerable, not long before and soon after she gave birth. In short, the judge had failed to
have sufficient regard to the facts (i) that the rapes of the first complainer caused a high level
of harm; and (ii) that the respondent's culpability for the rapes of the second complainer
was high.
[11]
Second, although an in cumulo sentence had been appropriate, the judge had not
applied the guidance provided in HM Advocate v Fergusson. He ought to have identified
suitable sentences for each of the charges, aggregated them, and then reduced the total to
reach a fair and proportionate in cumulo sentence. Had he done that the sentence would
have been higher.
[12]
Third, the judge had not taken proper account of the 2016 Act aggravations in
charges 4 and 5 (McGowan v HM Advocate 2024 HCJAC 20, 2024 SLT 635; AP v HM
Advocate 2024 HCJAC 31). He had not identified the extent to which the sentence was
different from the sentence which he would have imposed had there been no such
aggravations. He had been bound to state that, identify the extent of the difference and give
reasons for it (or give reasons why there was no difference in sentence) (section 1(5)(d) of the
2016 Act). There ought to have been increases similar to those in AP.
6
[13]
Recent cases in which there had been rapes of two complainers where longer
sentences had been passed suggested that the sentence was unduly lenient. Reference was
made to Ibbotson v HM Advocate 2022 SCCR 265 (effectively a sentence of 9 years); Simion v
respondent JI); and HM Advocate v AP [2024] HCJAC 31 (8 years). Moreover, a cross-check
with the Sentencing Council for England and Wales rape guideline suggested that each of
the charges would fall into category 2B, with a starting point of 8 years' imprisonment and a
range of 7-9 years. The starting point and range would be higher in the case of an in cumulo
sentence for all four charges.
Submissions for the respondent
[14]
The sentence may have been lenient, but it was not unduly lenient. It did not fall
outside the range of sentences which the judge, applying all the relevant factors, could
reasonably have considered appropriate (HM Advocate v Bell 1995 SLT 350, p353I,
1995 SCCR 244, at p 250D). At the time of charges 1 and 2 the respondent was only 19 and
was in his first real relationship. The judge had appropriate regard to all of the aggravating
and mitigating circumstances. Even if the sentence could be said to have been unduly
lenient, this was not a case where it was necessary for the court to exercise its discretion to
impose a more severe sentence (HM Advocate v Bell, 1995 SLT 353 at p353L-354A,
1995 SCCR 243 at pp 250G-251A).
7
Decision and reasons
[15]
The issue is whether the sentence is unduly lenient, applying the test set out in
HM Advocate v Bell 1995 SLT 350, LJG Hope at p353I; 1995 SCCR 244 at p250D. Does it "fall
outside the range of sentences which the judge at first instance, applying his mind to all the
relevant factors, could reasonably have considered appropriate?"
[16]
The judge did not have the benefit of the court's opinion in HM Advocate v Fergusson.
As a result, in arriving at the sentence he did not indicate what appropriate sentences would
have been for individual charges or groups of charges had they stood alone.
[17]
The judge states that he had regard to the 2016 Act aggravations when fixing the
sentence. However, he did not comply with the statutory direction in section 1(5)(d) of the
2016 Act which provides:
"1 Aggravation of offence where abuse of partner or ex-partner
(1) This subsection applies where it is--
(a) libelled in an indictment or specified in a complaint that an offence is
aggravated by involving abuse of the partner or ex-partner of the person
committing it, and
(b) proved that the offence is so aggravated.
...
(5) Where subsection (1) applies, the court must--
...
(d) state -
(i) where the sentence imposed in respect of the offence is different
from that which the court would have imposed if the offence were not
so aggravated, the extent of and the reasons for that difference, or
(ii) otherwise, the reasons for there being no such difference."
The judge ought to have complied with that direction.
[18]
The respondent was 27 at the date of sentencing. The Sentencing Young People
guideline did not apply to him. Hence the particular emphases given in that guideline to
(i) consideration of the age and maturity of a young person at the time the offences were
8
committed; and (ii) the sentencing purpose of rehabilitation, were not applicable.
Nevertheless, the respondent's age and maturity at the time of offending remained a
relevant factor bearing on culpability (HM Advocate v RM 2024 JC 81, Lord Justice Clerk
Dorrian at para [38]); and the sentencing purpose of rehabilitation (Principles and Purposes
of Sentencing guideline, para [5]) was one of several purposes to be considered, though in
the respondent's case it did not deserve much weight
[19]
In this case we find it helpful to consider what appropriate in cumulo sentences
would have been for (i) charges 1 and 2; and (ii) charges 4 and 5, had we been considering
each pair of offences on its own.
[20]
Charges 1 and 2 each involved a single rape. The harm to the complainer was
serious. On the other hand, when assessing the respondent's culpability the judge was right
to take account of his youth and lack of maturity at the time. Had these charges stood alone
we think an appropriate in cumulo sentence would have been 5 years' imprisonment.
[21]
Charges 4 and 5 involved frequent rapes over a significant period. Two of them
were aggravated because of the complainer's particular vulnerability when they were
committed. The respondent was aged 23 and 24 at the time of the offences. Age and lack of
maturity were not considerations of any real weight in relation to these offences, and the
persistent nature of the offending points to a higher level of culpability than in respect of
charges 1 and 2. Each of the charges had a 2016 Act aggravation. Had charges 4 and 5 stood
alone an appropriate in cumulo sentence would have been 7 years 6 months' imprisonment,
9 months of which would have been attributed to the aggravations.
[22]
A sentence of 12 years 6 months' imprisonment would be disproportionate. The
totality principle requires that the sentence here be significantly less than that aggregate
9
figure. It points to a fair and proportionate sentence being of the order of 9 years'
imprisonment.
[23]
We have not relied solely on that approach. We have also compared this case to
other recent sexual offence cases involving more than one complainer, of which there are a
considerable number. It is sufficient to mention three of them.
[24]
In HM Advocate v RM 2024 JC 181, RM deserved a higher sentence than the
respondent. There were three complainers. The rapes were oral, vaginal and anal. The
offending extended over a 10-year period with an escalating pattern of violence
accompanying the sexual offending. Two of the three charges had 2016 Act aggravations.
The court quashed an in cumulo sentence of 8 years and replaced it with an in cumulo
extended sentence of 13 years with a custodial term of 10 years.
[25]
In HM Advocate v AP [2024] HCJAC 31, AP had been convicted of one charge of
sexual assault and two charges of rape to injury. Each charge involved a different
complainer and each had a 2016 Act aggravation. Two of the charges also had bail
aggravations. The court quashed the in cumulo sentence of 5 years' imprisonment and
substituted an in cumulo sentence of 8 years' imprisonment. While the number of rapes was
fewer than in the present case, countervailing factors were that there were three
complainers; the rapes involved significant force and they caused injury; and the
respondent was a fully mature adult in his mid-30s at the time of the offences, with a prior
conviction for a contravention of section 1 of the Domestic Abuse (Scotland) Act 2018.
[26]
HM Advocate v LB 2023 JC 97 dealt with three Crown appeals against sentences. The
respondent JI had been convicted of three charges relating to two complainers. The charge
involving the first complainer was of indecent assault by penile penetration of the
10
complainer's anus. Had it occurred after the commencement of section 1 of the Sexual
Offences (Scotland) Act 2009 it would have been rape. The first charge concerning the
second complainer was of assault to injury and danger to life on various occasions over a
3-year period. The final charge was an anal rape, in the course of which the respondent
physically assaulted the complainer, inter alia, by repeatedly punching her on the head and
body, and placing his hands around her neck restricting her breathing. The trial judge
sentenced JI to 3 years' imprisonment for the indecent assault and to 4 years in cumulo on the
remaining charges, which sentences were concurrent. The court quashed those sentences
and substituted an in cumulo sentence of 8 years' imprisonment. While, unlike the present
case, there was only one sexual attack on each complainer, the rape of the second
complainer formed part of a pattern of violent behaviour towards her and was itself
accompanied by violence. The behaviour against the second complainer occurred when JI
was a mature adult aged 25-29. He had been aged between 22 and 24 at the time of the
indecent assault against the first complainer.
[27]
In our opinion comparison with these cases indicates that an appropriate sentence
for the respondent is 9 years' imprisonment, of which we would attribute 7 months to the
2016 Act aggravations.
[28]
In the circumstances of this case we derive more assistance from the Fergusson
exercise and the comparative analysis, and from our judgement and experience as
sentencing judges and as appellate judges, than we do from the figures referred to by the
advocate depute by way of a cross-check using the English Sentencing Council rape
guideline.
11
Conclusions and disposal
[29]
The sentence passed by the judge is unduly lenient. The nature and gravity of the
offending call for a more severe sentence.
[30]
We shall allow the appeal, quash the in cumulo sentence of 6 years' imprisonment,
and substitute an in cumulo sentence of 9 years' imprisonment, of which 7 months is
attributable to the 2016 Act aggravations. As before, that sentence runs from 24 April 2024.
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