His Majesty’s Advocate v. M.G. [2023] HCJAC 3

Crown appeal against sentence:- The respondent was convicted of a charge of rape. He was sentenced to 4 years imprisonment. The Crown appealed against the sentence imposed it being contended that it was unduly lenient. The circumstances were that the respondent and the complainer met via the Tinder dating application and agreed to meet at a hotel in Stirling. The respondent and the complainer drank some alcohol and prior to ordering a taxi home, the respondent offered the complainer use of the toilet in his room which he had booked for the evening. When the complainer came out of the toilet the respondent gave her a mug and told her it contained pink gin which she said tasted very strong. The respondent had taken a Viagra whilst she was in the toilet. They talked for a period, however,  the complainer began to feel tired and heavy and fell asleep. For the next 3 hours the complainer lapsed in and out of consciousness whilst the respondent raped her. It was submitted on behalf of the Crown that the test as contained in HMA v. Bell 1995 SCCR 244 was met, namely, that  the sentence fell outwith the range of sentences which a judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. It was contended that under reference to the Sentencing Council for England and Wales Definitive Guideline for cases of rape, the appropriate sentence was imprisonment in the range of 7 to 8 years given:- (1) this was a conviction after trial; (2) the significant element of duplicity involved; (3) the significant element of pre-planning involved; (4) the age and professional position of the respondent; and (5) the age and vulnerability of the complainer. On behalf of the respondent it was submitted that:- (1) there was no evidence that MG had brought pink gin and Viagra with the prior intention of committing a sexual offence, it being his position that he had brought them in the hope of having a consensual sexual encounter, there being a significant difference between that and a course of conduct with the primary objective of committing a rape; (2) the public are protected for 4 years; and (3) given the respondent’s personal circumstances (a GP) the impact of the 4 year sentence was significant and the severity of the punishment should not be limited to considering the length of the sentence alone, in that he will be subject to the notification requirements of the Sexual Offences Act 2003 and he will be unable to resume his work as a GP. Here the court considered that, whilst the sentence could be viewed as lenient, it was not unduly lenient. In particular, the court noted that the sentencing judge had adequately assessed all relevant matters. The court did not consider that the complainer was any more vulnerable to greater harm from the offence than a non-intoxicated person would be and also assessed the extent to which the incident could be termed as prolonged or sustained. The court noted that whilst care should be taken in applying the definitive Guideline on rape from England and Wales, using it as a cross-check the circumstances of the present case merited a range of 4-7 year with a starting point of 5 years and the Crown appeal was refused.