A man who was sentenced to three years and nine months’ imprisonment after pleading guilty to raping a child and filming the assault on his mobile phone has had his custodial term increased following an appeal by the Crown.
The Appeal Court of the High Court of Justiciary quashed the sentence and imposed a sentence of six years’ imprisonment after ruling that the original disposal was “unduly lenient”.
The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull, heard that the respondent “CH” was indicted in the High Court on four charges, but pled guilty to two charges, (002) oral rape of his friend’s three-year-old son and (003) making a video recording of the act, while his pleas of not guilty to the other charges were accepted by the Crown.
Having adjourned the diet for the preparation of a criminal justice social work report and thereafter a psychiatric report, on 20 July 2017 the sentencing judge imposed a cumulo sentence of three years and nine months’ imprisonment, discounted from five years to reflect the guilty plea. The respondent was also made subject to the notification requirements under Part 2 of the Sexual Offences Act 2003 for an indefinite period.
However, the Crown lodged an appeal against sentence on the ground that it was unduly lenient.
‘Significant breach of trust’
The advocate depute Alex Prentice QC submitted that the sentence “failed to recognise the gravity of the offences”, which involved a “significant breach of trust” and which were committed against a very young child.
The offences were committed in the complainer’s family home and the act of oral rape was recorded by the respondent on his mobile phone.
It was also argued that the sentence failed to satisfy the need for “retribution, deterrence, and protection of the public”.
Reference was also made to the Sexual Offences Definitive Guideline issued by the Sentencing Council for England and Wales, which, when applied to the present case and having regard to the aggravating features of age of the child, abuse of trust, recording of the offence and ejaculation, would suggest a starting point of 13 years’ imprisonment.
On behalf of the respondent, Ms Ogg reminded the court that the statutory test for an appeal against sentence at the instance of the Lord Advocate was that the sentence must fall “outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate”.
Applying that test, it was argued that it could not be said that a sentence based on the selection of a headline figure of five years’ imprisonment was unduly lenient.
‘Unduly lenient sentence’
However, the appeal judges concluded that the headline sentence selected by the sentencing judge was “not only a lenient one but an unduly lenient one”.
Delivering the opinion of the court, Lord Brodie said: “In concluding that it was unduly lenient we have been particularly influenced by the fact that the respondent recorded a moving image of his rape of the complainer.
“That this was to be regarded as a material aggravation (and therefore a factor pointing to a higher sentence than would otherwise have been imposed simply for the rape) was enunciated in Attorney General’s Reference (Nos. 3, 73 and 75 of 2010) and reiterated in the subsequently published Definitive Guideline. That is a position that we would endorse. We do not see it to be reflected in the sentencing judge’s disposal.
“We shall quash the sentence imposed by the sentencing judge. We shall substitute a sentence of six years’ imprisonment in respect of charge 002, that being based on a headline sentence of eight years discounted by the same percentage adopted by the sentencing judge. We have not seen it necessary to impose an extended sentence.”
He added: “We shall impose a separate sentence in respect of charge 003. We note that the maximum sentence for contravention of section 52(3)(b) of the 1982 Act on conviction on indictment is three years’ imprisonment: section 52(3)(b). The sentence will be one of 24 months’ imprisonment, that being based on a headline sentence of 32 months, again discounted by the percentage adopted by the sentencing judge.
“As we have had regard to the appellant’s videoing his offending as an aggravation of sentence in respect of charge 002, in order to avoid what would otherwise be double counting, we shall order the sentence on charge 003 to be served concurrently with the sentence on charge 002. The sentences will be backdated to the date selected by the sentencing judge.”