His Majesty’s Advocate v. Barzan Nawshowani [2024] HCJAC 21

Crown appeal against sentence:- On 2 February 2024, following a trial at Glasgow High Court, the respondent was found guilty of a charge of raping the complainer contrary to section 1 of the Sexual Offences (Scotland) Act 2009 in relation to an incident in Glasgow on 7 August 2022. A docket was appended to the indictment relating to conduct by the respondent on 2 August 2015 when he pretended to LO that he was a licensed private taxi driver and drove her to a secluded area and while she was asleep or unconscious due to intoxication sexually assaulted her. In his evidence the respondent accepted that LO had been in his car in the early hours of the morning but he denied pretending to be a taxi driver or assaulting her. In relation to the rape of the complainer she had thought she was getting into a taxi and after dropping her friend CS off the respondent did not drive the complainer to her address but, rather, parked outside his barber shop in Duke Street and when the complainer got out of the car he followed her and encouraged her to go into the shop with him and, after switching off the CCTV cameras forcibly raped her. The complainer was crying throughout, repeatedly said “no” to the respondent, however, he continued without wearing a condom and ejaculated inside her vagina. Once he finished the respondent opened the shutters of the shop switched the CCTV cameras back on and left the shop with her. The complainer then made her own way home a short distance away. The complainer was very distressed and called and texted friends to come to help her. Following the obtaining of a Criminal Justice Social Work Report the respondent was sentenced to a period of 6 years imprisonment backdated to 25 August 2022 when he was remanded in custody, following his first appearance on petition. The Crown appealed against the sentence imposed contending it was unduly lenient and that the trial judge had erred in a number of ways:- (1) he ought to have assessed the respondent as having greater culpability and of having caused more serious harm; (2) the sentence did not adequately reflect the premeditated and predatory nature of the attack on a vulnerable young woman including her abduction and detention, the force used against her and the harm the attack caused her; (3) the sentence failed to sufficiently protect the public nor adequately mark the court’s disapproval of the conduct and failed to deter others from offending in a similar way; (4) he had incorrectly categorised the respondent as being of previous good character which failed to recognise his previous convictions in Scotland and England together with criticisms of how he had approached the respondent’s adverse experiences in Iraq and his personal attitudes towards women; (5) having regard to the Sentencing Council for England and Wales guideline for rape where an offence like the present was a category 2A offence where the sentence range would be 9-13 years imprisonment and the starting point 10 years; and (6) in  light of concerns raised about the respondent the CJSWR recommended a period of post-release supervision. On behalf of the respondent it was submitted that the trial judge had not erred in the sentence imposed, he had taken all relevant factors into consideration and, whilst the sentence could be described as lenient, it was not unduly so and fell within the range of sentences which a judge at first instance could reasonably have considered appropriate. Here the court allowed the appeal. The court considered that the trial judge was entitled to have regard to the respondent’s lack of previous analogous offending and his adverse experiences in Iraq, however, in a case such as this, neither factor amounted to significant mitigation. The court noted that it was clear on the evidence led that the respondent had repeatedly held himself out as being a taxi driver in Glasgow city centre when he gave lifts to vulnerable young women when they were in a state of intoxication and took advantage of them in that state by sexually assaulting and raping them. The court described the conduct as “calculated and predatory” (para 10). The court considered that the sentence was unduly lenient and, having regard to what was said by the court in H.M.A. v Bell 1995 S.C.C.R. 244, fell outwith the range of sentences which, had the judge applied his mind correctly to all of the relevant factors, could reasonably have been considered appropriate. The court quashed the sentence of 6 years imprisonment and substituted an extended sentence of 11 years imprisonment comprising of a custodial element of 8 years and an extension period of 3 years backdated to 25 August 2022.