C.A. v. His Majesty’s Advocate [2024] HCJAC 29

Note of appeal against conviction and sentence:- The appellant was convicted after trial of two charges:- (1) on various occasions between 1 August 2011 and 19 December 2014 the sexual assault by penetration and rape of a young child M, when M was 5-8 years of age; and (2) on various occasions between 1 June 2011 and 19 December 2014 the sexual assault by penetration of a young child E, when E was 5-9 years of age. At the time of the commission of the offences the appellant was aged between 13 and 16 years. Following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to 6 years imprisonment. The appellant appealed against his conviction it being contended that the trial judge had misdirected the jury in relation to what use could be made of evidence of the complainers’ distress at the time of making certain disclosures in 2020 and 2021. In addition, the appellant appealed against the sentence imposed it being contended it was excessive in that the trial judge failed to give sufficient weight to various mitigating factors. It was submitted on behalf of the appellant that the trial judge misdirected the jury on the use that could be made of the distress evidence as the effect of the directions was to make the evidence of distress available as corroborative evidence. It was argued on behalf of the appellant that the distress evidence was not de recenti it being too far removed in time to provide corroboration and the directions given were likely to confuse the jury in making them think there may have been an alternative route to conviction other than by the application of the doctrine of mutual corroboration. In relation to the appeal against sentence it was submitted that the trial judge gave insufficient weight to a number of factors including:- (a) the age of the appellant at the time of committing the offences when he was aged 13-16 and at the time of conviction he was aged 24 and the Sentencing Young People guideline applied it being submitted that he lacked intellectual and emotional maturity, his culpability would be lower and the prospects of rehabilitation would have been significant; (b) the absence of further offending since the commission of the offences and what was described in the CJSWR as the “natural maturation process” which the appellant had undergone in that period; and (c) the appellant’s personal circumstances including the deterioration in his mental health and his role in caring for his mother who suffered from a serious illness. On behalf of the Crown, the Lord Advocate submitted that the trial judge’s direction served no purpose given it was not necessary for the Crown to prove that the victims who were young children did not consent. If the victims had been adults then the directions would have been appropriate and the directions given should not be categorised as misdirections but in any event were of no materiality and did not result in a miscarriage of justice. Here the court refused the appeal against conviction. The court considered that the trial judge erred in providing the directions he did in light of the period of time which had elapsed between the events described and the distress exhibited. The court considered that the directions were not only unnecessary but wrong given that the state of mind is not a relevant consideration in offences against children and further in seeming to refer to non-corroborative distress in the context of a de recenti statement. As such the court did not consider it necessary to discuss any implications from the lapse of time between the events and the distress. The court noted, however, that it was made abundantly clear to the jury that the only route to a conviction was through the application of the doctrine of mutual corroboration and through the acceptance of each complainer as credible and reliable. As such the court considered that the misdirection had no materiality and could not be said to have resulted in a miscarriage of justice. In relation to the appeal against sentence the court allowed the appeal and quashed the sentence of 6 years imprisonment and substituted a period of 4 years. The court noted that almost ten years has passed since the commission of the offences during which period of time the appellant appeared to have matured and become a useful and productive member of society including taking care of his ill mother. In addition, the information available to the court allowed the court to proceed on the basis that the appellant presented a low risk of reoffending. Further, his age at the time of the offending reduced the appellant’s culpability and his maturing since resulted in the court deeming the 6 year sentence of imprisonment excessive.