His Majesty’s Advocate v. R.B. [2025] HCJAC 7

Crown appeal against sentence:- On 14 June 2024, following a trial at Kilmarnock High Court, the respondent was convicted of two charges:- (1) charge 1 - causing his son, LC (aged 4-5), to participate in sexual activity, on an occasion between April 2011 and April 2013; and (2) charge 3 – the rape of his daughter, HH (aged 10), on an occasion between November 2019 and March 2020. Following the obtaining of a Criminal Justice Social Work Report the respondent was sentenced 12 months imprisonment on charge 1 and 6 years imprisonment on charge 3 to be served consecutively. The Crown appealed against the sentence imposed it being contended that it was unduly lenient. On behalf of the Crown it was submitted that the respondent, as the father of the complainers, was in an enhanced position of trust and under reference to Collins v HMA 2017 JC 99 the appropriate sentencing range was 8-10 years imprisonment. It was further submitted that the offending in relation to HH was aggravated by her young age and the circumstances of the offence itself described as s sudden and unexpected attack with the use of force and the complainer’s attempt to escape. Furthermore, it was submitted that the trial judge erred in his report to the court by stating that the psychological harm to HH was not severe or significant given that HH’s Victim Statement, completed two years after the offending, indicated long-term and severe consequences which went beyond the harm inherent in the nature of the offence. It was submitted that the sentence for the rape of a child should be significantly higher than a sentence for rape under section 1 of the 2009 Act given the increased harm and culpability. On behalf of the respondent it was submitted that the sentence selected by the trial judge was not outwith the sentencing range that could reasonably have been selected for such offending with the sentencing judge having taken into account the various aggravating features including the breach of trust, the age of the complainers and the use of force in relation to HH and her inability to escape from the locus due to being locked in the property with a starting point of 8-10 years being unnecessary. Here the court allowed the appeal. The court disagreed with the trial judge’s categorisation of the offending against LC as sufficiently minor in nature that it might have been prosecuted on summary complaint. The court took the view that the offending involved two serious charges of sexual abuse of his own very young children involving a significant breach of trust causing the complainers significant fear and alarm. In relation to HH, in particular, the offence was extremely serious with various aggravating factors which the judge at first instance gave insufficient weight to. The court also disagreed with the sentencing judge’s view in relation to HH that it could not be said that the psychological harm set out in the Victim Statement was ‘significant’. The court considered that the appropriate sentence for charge 1 would be 2 years imprisonment and an appropriate sentence for charge 3 would be 10 years. Further, the court considered that the sentences should be served consecutively, however, applying the totality principle the court considered that a total cumulo sentence should be 11 years. Given the terms of the CJSWR including the risk assessments the court considered that an extended sentence was appropriate. The seven year sentence was quashed and a cumulo extended sentence of 14 years comprising of a custodial element of 11 years and extension period of 3 years was substituted.