Man convicted of historical rape of sister and cousin wins appeal against ‘excessive’ nine-year sentence

Lord Menzies
Lord Menzies
A man who was sentenced to nine years‘ imprisonment after being found guilty of historical sex offences which included the rape of his younger sister and a cousin when he was a teenager has had his custodial term reduced following an appeal.
The High Court of Justiciary Appeal Court quashed the original sentence and imposed one of six years after ruling that the trial judge’s disposal was “excessive”, having regard to the appellant’s age at the time of the offences, the 40-year period since without re-offending and the “low risk” to the public.
Cumulo sentence
Lord Menzies and Lord Turnbull heard that the appellant “HM” was convicted after trial at Glasgow High Court of three serious charges, which were committed when he was aged between 13 and 17.
The first was of lewd, indecent and libidinous practices and behaviour towards his younger sister between May 1971 and May 1975 at a time when she was aged between four and about seven or almost eight; second, of rape of the same younger sister on one occasion between the same dates; and third, rape of a younger cousin of his on various occasions between November 1973 and November 1976 when she was aged between three and six.
The trial judge, having obtained a criminal justice social work report and having heard mitigation on behalf of the 59-year-old, stated that if the charges had been sentenced individually the sentences would have been four years for the first charge and six years imprisonment for each of the second and third charges but that taken together this would have resulted in a total sentence of 16 years which he considered would be an “excessive penalty”. 
He therefore imposed a cumulo sentence of nine years’ imprisonment in respect of the three charges.
‘Excessive penalty’
But the appellant challenged the total sentence imposed, arguing that it was “excessive”.
In his sentencing statement the trial judge observed that the sexual abuse of children was “abhorrent” and that rape was at the most serious end of the scale of sexual offences. 
He went on to say that anyone who committed such an offence had to expect to receive a “significant custodial penalty” whenever they were brought to justice. 
The appeal judges agreed with those views, and also agreed that a cumulative total of 16 years would have been an “excessive penalty” and that he was correct to impose a lower cumulo sentence.
However, what the trial judge did not do in the course of his sentencing statement, nor in his report to the appeal court, was to make any reference to the case of Paul Greig v HM Advocate 2013 JC 115, in which the court gave authoritative guidance as to how a judge should approach sentencing an adult for an offence committed whilst a child, what weight should be given to the appellant’s age at the time of the offence, the appellant’s behaviour in the intervening period and also what weight should be given to the need for future protection of the public - matters that had already been covered by the court in the case of L v HM Advocate 2003 SCCR 120.
‘Low risk’ of re-offending
The appeal judges reiterated that the offences of which the appellant was convicted were “abhorrent and serious crimes”, but held that the cumulo sentence imposed was “excessive”.
Delivering the opinion of the court, Lord Menzies said: “In the present case, the criminal justice social work report adopted three methods of risk assessment to assess the risk presented by the appellant. These resulted in an assessment of a minimum risk in one of them and of low risk in each of the other two methods of assessment. 
“It does not appear that the trial judge in reaching the cumulo sentence of nine years imprisonment has had sufficient regard to the period of over 40 years during which the appellant has not re-offended or come to the attention of the authorities and in which he appears to have led a pro-social life, being fully employed and forming part of the community in which he lived.
“The cases of Greig and L in which the original sentence in each case was reduced from eight years imprisonment to five years imprisonment can be distinguished from the appellant’s circumstances in the present case because it does appear that the appellant continued to offend in relation to his young cousin in relation to the third of these offences when he was a rather older teenager until the age of 16 or 17 whereas for example in Greig the offences were committed when the appellant was aged 14 and 15.
“Having regard to all of the circumstances in this case, including the guidance given in Greig, the fact of the long intervening period of responsible adulthood and the assessment that there is a low need for the public protection, we consider that the cumulo sentence imposed by the trial judge was indeed excessive. We shall accordingly quash that sentence.” 
“However,” he added, “we reiterate that these were abhorrent and serious crimes and that has to be reflected in the sentence of this court. We shall accordingly impose a cumulo sentence in respect of all three charges of six years imprisonment to date from the same date as the sentence imposed by the trial judge.”

© Scottish Legal News Ltd 2021

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