His Majesty’s Advocate v. A. P. [2024] HCJAC 31

Crown appeal against sentence:- The respondent was convicted after trial of three charges:- (1) charge 4 a charge of sexual assault of his ex-partner H, contrary to section 3 of the Sexual Offences (Scotland) Act 2009; (2) charge 10 a charge of rape of his ex-partner T, contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (3) charge 11 a charge of anal rape of his partner B contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The charges were all aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 and charges 4 and 10 were subject to a bail aggravation. A number of other charges alleging abusive conduct by the respondent were either withdrawn by the Crown or verdicts of acquittal were returned by the jury. The indictment had also contained a docket in relation to a course of abusive conduct towards B which related to a prior conviction under section 1 of DASA. Following the obtaining of a Criminal Justice Social Work Report the respondent was sentenced in cumulo to a period of 5 years imprisonment backdated to 13 December 2023 and a 10 year non-harassment order was imposed in respect of each of the complainers in terms of section 234AZA of the 1995 Act and the respondent was made subject to the notification requirements under Part 2 of the Sexual Offences Act 2003 for an indefinite period. The Crown appealed against the sentence imposed it being contended that the cumulo sentence of 5 years imprisonment was unduly lenient. It was submitted on behalf of the Crown that the sentencing judge had erred in a number of ways:- (a) the significance of the statutory aggravations and the absence of any indication that there had been an increase in the sentence to reflect the domestic aggravations; (b) the correct approach to the imposition of a cumulo sentence for multiple offences as the court failed to follow the approach in HMA v Fergusson [2024] HCJAC 22 in which it was explained that is necessary to state the reasons as clearly and openly as circumstances permit, to explain what sentence would have been selected had the offence, or group of offences, stood alone and why a cumulo sentence of a lesser amount than the sum of the various sentences was appropriate; (c) the assessment of the overall seriousness of the offending appeared to have been minimised as there had been a lasting and psychological impact on the complainers and the respondent continued to deny any wrong doing and lacked remorse, insight and victim empathy; (d) the absence of mitigating factors in that the respondent’s mental health issues were self-reported, lacked any medical evidence to support them and undue weight had been attached; and (v) the assessment of risk, and criteria for the imposition of an extended sentence as a number of factors were present which suggested that the respondent was likely to reoffend, particularly in a domestic setting and the sentence imposed was insufficient to manage the risk posed by him upon his release. On behalf of the respondent it was submitted that the sentence of 5 years imprisonment was not unduly lenient and an extended sentence was not appropriate. It was further submitted that the core principle in sentencing is that it must be fair and proportionate and had three requirements:- (i) all relevant factors must be considered, including the seriousness of the offence, the impact on the victim and others and the circumstances of the offender which the judge had done; (ii) all relevant factors must be considered, including the seriousness of the offence, the impact on the victim and others and the circumstances of the offender and in the present case the judge had considered the aggravations and ex proprio motu imposed 10 year non-harassment orders as a result; and (iii) the reasons for sentencing decisions must be stated as clearly and openly as circumstances permit and the judge had done that in the present case, he having had the benefit of hearing all of the evidence in the trial. Here the court allowed the appeal. The court considered that the sentencing judge had failed to recognise the seriousness and severity of each of the three offences, in particular, describing the three charges as “inappropriate sexual conduct” which did not reflect the severity of the offending. In addition, there was a failure by the sentencing judge to reflect the section 1 aggravations in the sentence imposed. The court referred to what was said in McGowan v HMA 2024 HCJAC 20 at paragraphs 16 and 17:- “[16] The Act makes it clear that the reverse should be the case by elevating that context to one of a formal aggravation. The sentencing exercise, no matter how artificial it may seem in some cases, thereby becomes one of selecting a punishment part for the offence, were it to occur in a non-domestic context, and then increasing it to take account of the aggravation (Rizzo v HM Advocate 2020 SCCR 397, LJG (Carloway), delivering the opinion of the court, at para [18]). [17] No fixed percentage or other level of additional penalty is stipulated in respect of an abuse of partner aggravation of this nature, but its inclusion acknowledges the appropriate seriousness with which domestic offences are to be treated. It will no doubt depend on the circumstances of the cases, but it must be assumed that, although Parliament was content to leave the overall sentence to the discretion of the judge, it intended that the courts should normally add a significant penalty to that which would have attended a similar, but non partner abuse aggravated, crime…”. The court also noted that whilst a series of offences constituting a course of conduct may provide the classic circumstances for imposing a cumulo sentence, in the interests of transparency, it is necessary for the court to consider both what sentence might have been appropriate for the individual offences, and how the criminality of the series of offences might be reflected properly, without excess, in the imposition of a cumulo sentence. The court considered there were no mitigatory factors relating to the commission of the offences. The court considered that in carrying out the Fergusson exercise a cumulo sentence of 5 years was unduly lenient and that in relation to charge 10 and 11 each would have justified a sentence of 4 ½ years prior to consideration of the aggravations and in relation to charge 4 might have resulted in a sentence of 18 months. Taking the statutory aggravation into account would have increased charges 10 and 11 by a period of about a year and charge 4 would have been increased by about 6 months to reflect both statutory aggravations which applied. The court considered that the charges clearly demonstrated a course of conduct and stated that to apply consecutive sentences would result in an excessive sentence and a concurrent sentence would not reflect the seriousness of criminality involved. As such the court considered that an overall cumulo custodial sentence of 8 years was appropriate and quashed the cumulo sentence of 5 years and imposed one of 8 years, however, the court did not consider that the test for the imposition of an extended sentence had been met.