Reference from the Scottish Criminal Cases Review Commission by ST v. Her Majesty's Advocate [2014] HCJAC 31

On 24 May 2011, at the High Court in Dundee, the appellant pled guilty to four charges involving the repeated rape of his two sisters from 1971 to 1979 when he was aged between 13 and 21. The sentencing judge selected a sentence in cumulo of 10 years for the rape offences and 5 years concurrent on the incest charges. The sentences were discounted on account of the pleas prior to the trial diet, to 9 years and 4 1/2 years to be served concurrently with each other. Leave to appeal against the sentence was initially refused at first sift as being unarguable. It was granted at second sift and the appeal proceeded to a hearing on 9 March 2012. The appeal was refused. The Scottish Criminal Cases Review Commission initially declined to refer the case to the court, however, following upon receipt of an opinion of counsel a reference was made on the basis of the distinguishing features between the appellant's case and that of Greig v HMA 2012 SCCR 757 and reliance on the principles of comparative justice. It was submitted on behalf of the appellant that insufficient regard had been had to the dysfunctional background of the appellant and he was a product of the environment in which he had grown up. Albeit there was reference in the SCCRC report to the principles of comparative justice that was not insisted upon at the appeal hearing, it being conceded on behalf of the appellant that such considerations only apply between co-accused in similar circumstances. Here the court considered that Greig was easily distinguishable from the present case in that the appellant in Greig had been a child for the commission of all his offences whereas in the present case, in relation to the second sister, the appellant was an adult offender who knew what he was doing was wrong at the time. Here in refusing the appeal the court noted that the sentence selected by the first instance court was at the higher end of the scale for this type of offending, however, in all the circumstances of the case the sentence selected could not be described as excessive.