His Majesty’s Advocate v. R.M.G. [2024] HCJAC 41

Crown appeal against sentence:- The respondent was convicted after trial at the high court of 17 charges, three of which (charges 14, 16 and 17) were assaults resulting in his admonition. In relation to the remaining 14 charges the respondent was sentenced to an in cumulo sentence of 8 years imprisonment for the sexual offences (charges 1, 2, 3, 4, 5, 6 and 9) backdated to 23 May 2024 and in respect of the physical assault offences (charges 7, 8, 10, 11, 12, 13 and 15) he was sentenced to an in cumulo sentence of 3 years imprisonment which sentence was made concurrent to the 8 year sentence. The Crown appealed against the sentence imposed in respect of the 14 charges it being contended that the sentence imposed was unduly lenient. At trial the respondent denied all of the sexual offending but accepted responsibility for some of the physical assaults. Post-conviction he continued to deny the sexual offending and continued to minimise his violent non-sexual offending. The respondent’s only previous conviction was for a theft in 1979. On behalf of the respondent at the sentencing diet reference was made to the absence of analogous offending, the commission of the sexual offences being around 40 years ago and the physical assaults 20 years ago and that the respondent had been in a stable relationship for 19 years, had a full work history prior to his remand and suffers from a number of physical ailments. Here it was submitted on behalf of the Crown that charges 1-6 all involved penile penetration against children, some involved threats/violence and all involved a significant breach of trust. It was submitted that an in cumulo sentence for charges 1 to 6 and charge 9 ought to have been higher than 8 years notwithstanding the age of the respondent at the time, the age of the offences and the pro social life he had lived since. In addition, it was submitted that the 3 year cumulo sentence for the physical assaults was also unduly lenient, with two of the charges involving the use of a knife and the partner assaults were sustained courses of domestic abuse covering a period of 20 years and included punching, biting, kicking, head-butting, hair pulling, eye poking, and compressing of the throat. Further, the sentencing judge had erred, having regard to McDade v. HMA 1997 SCCR 52, in that the sentence had been made concurrent resulting in no punishment being imposed for these further offences. On behalf of the respondent it was submitted that whilst the sentences may have been lenient they were not unduly lenient. Here the court stated that the sentencing judge had not carried out the sentencing exercise outlined by the court in HMA v Fergusson 2024 SLT 573 and allowed the appeal. The court did consider that an in cumulo sentence was appropriate, however, the totality of the sentences imposed were unduly lenient. In addition, the court considered that the judge erred in imposing a cumulo sentence for charges 7, 8, 10, 11, 12, 13 and 15 concurrently with the sentence for the sexual offences. Following the guidance provided in Fergusson the court considered that an appropriate in cumulo sentence for charges 1, 2, 3 and 4 would have been 6 years imprisonment. In relation to charges 5, 6 and 9 the court considered that an appropriate sentence would have been 8 years imprisonment. In relation to the physical assault charges an appropriate sentence would have been 4 years imprisonment bringing the cumulative total of those sentences as 18 years imprisonment which the court considered would be an excessive sentence and, applying the totality principle to significantly lower that sentence, imposed an in cumulo sentence of 12 years imprisonment backdated to 23 May 2024.