His Majesty’s Advocate v. T.J. [2023] HCJAC 23

Crown appeal against sentence:- The appellant pled guilty to a charge of rape at a trial diet. Following the obtaining of a Criminal Justice Social Work Report the sentencing judge imposed a sentence of 4 years and 6 months imprisonment discounted from a headline sentence of 5 years on account of the plea of guilty. The Crown appealed against the sentence imposed it being contended that it was unduly lenient, the judge having failed to adequately assess the seriousness of the offence and reflect the aggravating features present. It was submitted that the court failed to recognise the degree of planning and premeditation which included the respondent entering the complainer’s home uninvited and attacking her in her own bedroom knowing her to be vulnerable, being aware that she was intoxicated and alone other than the presence of her young son. It was further submitted that the respondent raped the complainer in front of her son who had tried to intervene to bring the complainer’s ordeal to an end and to comfort her, that the respondent was intoxicated and had prevented the complainer from seeking help and had returned on three separate occasions to continue the attack. Furthermore, it was submitted that the sentencing judge attached insufficient weight to the protection of the public as the nature of the attack and the terms of the CJSWR pointed to the respondent presenting a risk to the public. It was submitted that the sentence imposed was out of line with many reported Scottish cases where an intruder had carried out serious sexual assaults on an intoxicated and vulnerable complainer. In addition, having regard to the Sentencing Council of England and Wales as a cross-check those Guidelines suggested that the offence fell into category A2, 9-13 years with a starting point of 10 years, or Category B2, 7-9 years, with a starting point of 8 years.  On behalf of the respondent it was submitted that the test for a sentence being unduly lenient was a high one to satisfy and it was clear from the sentencing judge’s report that she had given full and careful consideration to all the relevant factors, and had adequately considered the degree of risk referred to in the CJSWR which was assessed as him being at medium risk of further sexual offending and medium risk of violent offending. Here the court allowed the Crown appeal against sentence. The court considered that the sentencing judge had given insufficient weight to a number of factors including:- (1) the degree and planning and premeditation involved; (2) the degree of violence involved which resulted in injury to the complainer; and (3) the attack was sustained and involved the respondent returning on three occasions to continue the attack which was perpetrated in the presence of the complainer’s son. In addition, the sentencing judge made reference to the headline sentence being appropriate for “a serious offence of rape, perpetrated by a first offender, of previous good character, who had accepted responsibility and shown remorse”, however, the court considered that failed to recognise that the sentence should be appropriate to the specific circumstances of the case and generic references to “serious” rapes and first offenders were inappropriate. Here the court, having regard to all of the factors present, considered that the Crown sentence appeal should be allowed, that the sentence was unduly lenient with the only mitigating factors present being the absence of significant previous convictions and the plea of guilty. The court had regard to the Guideline in England and Wales as a cross-check and took the view that the offence would be within the higher end of the range in category B2, namely, a headline sentence of 9 years discounted by 6 months to reflect the utilitarian value of the plea of guilty.