His Majesty’s Advocate v. C.M. [2024] HCJAC 39

Crown appeal against sentence:- The respondent was convicted after trial at the High Court of four charges of rape. On 27 May 2024, following the obtaining of a Criminal Justice Social Work Report, the trial judge sentenced the respondent to a cumulo sentence of 6 years imprisonment. The day after the sentence was imposed the court issued its opinion in H.M.A. v. Fergusson [2024] HCJAC 22. The Crown appealed against the sentence imposed, it being contended that the cumulo sentence of 6 years imprisonment was unduly lenient. The four charges of rape comprised of two charges involving the vaginal rape of the respondent’s former partner on single occasions. The remaining two charges of rape related to repeated rapes of a subsequent partner with both charges including aggravations in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The respondent’s position at trial was that all sexual conduct with the complainers had been consensual. In his report to the court the sentencing judge conceded that, in hindsight and having reflected on what had subsequently been said by the court in Fergusson, the sentence imposed by him was lenient but whether it was unduly lenient was a matter for the court. On behalf of the Crown it was submitted that the sentence was unduly lenient because:- (1) the sentencing judge had failed to have sufficient regard to the facts (a) that the rapes of the first complainer caused a high level of harm; and (b) that the respondent’s culpability for the rapes of the second complainer was high given the large number of rapes committed; (2) whilst a cumulo sentence may have been appropriate the sentencing judge had failed to apply the Fergusson guidance in that he had failed to identify suitable sentences for each of the charges, aggregate them and then reduced the total to reach a fair and proportionate in cumulo sentence, which, if he had done, would have been higher than the 6 years selected; and (3) the judge had failed to take proper account of the 2016 Act aggravations and given increases in sentence having regard to what was said by the court in McGowan v H.M.A. 2024 HCJAC 20 and A.P. v H.M.A. 2024 HCJAC 31. It was further submitted that if the sentencing judge had used the Sentencing Council for England and Wales rape guideline as a cross-check a starting point of 8 years imprisonment and a range of 7-9 years would indicate that a higher cumulo sentence than 6 years imprisonment was appropriate. On behalf of the respondent it was submitted that whilst the sentence may have been lenient it was not unduly so and, having regard to what was said by the court in Bell v. H.M.A. 1995 S.L.T. 350, the sentence imposed was not one that fell outwith the range of sentences which the judge, applying all the relevant factors, could reasonably have considered appropriate. It was further submitted on behalf of the respondent that the sentencing judge had proper regard to the fact that the respondent was only aged 19 in his first proper relationship when the first two charges were committed and the judge had given appropriate regard to the various aggravating and mitigating circumstances which were present. Here the court applied the test as set out in Bell and concluded that the sentence was unduly lenient. The court noted that the sentencing judge had failed to comply with the statutory direction in section 1(5)(d) of the 2016 n that he failed to 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 court observed that given the respondent was 27 years of age at the date of sentencing the Sentencing Young People guideline did not apply to him. Having regard to Fergusson the court considered what the appropriate what appropriate in cumulo sentences would have been for (a) charges 1 and 2 (single rape charges); and (2) charges 4 and 5 (repeated rape charges over a significant period), had it been considering each pair of offences on their own, with the court of the view that if charges 1 and 2 had been on their own an appropriate in cumulo sentence would have been 5 years imprisonment. In relation to charges 4 and 5, with the 2016 Act aggravations, had they stood alone the court considered that an appropriate in cumulo sentence would have been 7 years 6 months imprisonment, 9 months of which would have been attributed to the aggravations. The court considered that a sentence of 12 years 6 months imprisonment would have been disproportionate and applying the totality principle reduced the sentence to one of 9 years which the court considered to be fair and proportionate, with 7 months attributable to the 2016 aggravations. The court also had regard to other recent sexual offence cases involving more than one complainer as a cross-check, together with the guidance in Fergusson to arrive at the cumulo figure of 9 years imprisonment and the court also observed that more assistance was derived from that cross-checking exercise than the figures referred to by the Crown using the English and Welsh sentencing guideline.