Sex offender’s conviction upheld on appeal but sentence reduced by two years

Lord Carloway
Lord Carloway

A man convicted of a number of sexual offences has had his appeal against conviction refused but succeeded in having his sentence reduced due to his significantly low intelligence.

The appellant, PGT, was convicted of three charges in May 2019. He sought to have them quashed on account of a lack of corroboration. He was sentenced to 10 years’ imprisonment at trial.

Forced penetration

At the Appeal Court of the High Court of Justiciary, the Lord Justice-General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull heard that the appellant was convicted of three offences committed between approximately 1997-99 and 2006. The first and second charges related to offences committed against his nephew, GT, when he was a teenager. These included indecent assault and forced anal penetration after inducing him into consuming alcohol. In both instances, he threatened to tell GT’s parents about his behaviour unless he co-operated.

The third charge was for the rape of his former wife, BT, in 2006. The appellant had come home inebriated and became angry when she turned off the light to go to sleep. He told her that he could tell her what to do because she was his wife, removed her lower clothing, and penetrated her with his penis. Afterwards, he gave her £10 to “keep her mouth shut”.

In 2017, GT reported what had happened to him to BT. The police were subsequently informed and charges were brought. At trial, the appellant argued no case to answer but the trial judge repelled this submission, stating that mutual corroboration could apply. Eight points of similarity were provided, including that all the offences took place in the appellant’s home, took place in a bedroom with no-one else present, and that in each case the appellant took steps to ensure the complainer told no-one else about the incidents.

The appellant submitted that there was insufficient connection between the charges to allow for mutual corroboration. The time gap between the offences was said to be too large, and the familial connection between the complainers was only a coincidence.

The appellant also submitted that the trial judge failed to correct an error in the advocate depute’s address to the jury, in which he said that they could use the similar nature of the different charges in their assessment of the complainers’ credibility and reliability. The correct approach was for the jury to assess the credibility of each complainer separately, based solely on their own testimony and any other evidence specifically relating to the particular allegation, and without reference to testimony concerning other allegations. They could only consider mutual corroboration if they found each witness to be reliable separately.

Finally, the appellant submitted that the trial judge ought to have directed the jury to find a special feature of his behaviour that rendered the similarities between the charges compelling in order to find mutual corroboration, given the time gap between the offences, as recommended in the Scottish Jury Manual.

In relation to his sentence, it was argued that 10 years was excessively long in the circumstances. The appellant was of low intelligence and suffered a degree of learning disability. He had previously been convicted of three other sexual offences in the 1980s, for which he had spent time in a number of mental hospitals. He had also had a heart attack in 2017 and suffered from low blood pressure. It was submitted that 10 years was excessive on account of these factors and the fact that he had never had a custodial sentence before and was unlikely to be a danger to the public upon his release.

Notable similarities

The opinion of the court was delivered by the Lord Justice-General. In relation to whether mutual corroboration could be applied, he said: “In this case, for the application of mutual corroboration, where there was a gap of several years between the offences, the similarities in the place and circumstances of the offences required to be such as allowed the jury nevertheless to draw the appropriate inference relative to a course of criminal conduct persistently pursued. As detailed by the trial judge, there were such similarities, notably the familial circumstances of the offences and the fact that they took place in the appellant’s home. There were other similarities and dissimilarities, but it could not be said that on no possible view could the jury draw the appropriate inference. In the event they did so. The first ground of appeal accordingly fails.”

In relation to the second appeal ground, he said: “It is simply not practicable, nor does it accord with common sense, to direct a jury that, although they, as well at the trial judge, may, in the modern era, require to determine whether a complainer’s testimony is formally corroborated by that of another, they cannot take the existence of that other’s testimony in determining whether the first complainer’s account is credible and/or reliable. It defies reason to suggest that the existence of a second complainer, with an account of the same nature as is required to establish mutual corroboration, can play no part at all in assessing the credibility of the first complainer and vice versa.”

He continued: “The exercise for the jury is not one to be carried out in isolation or in strict sequence. The jury require to determine whether they accept the complainers as credible and reliable. They also need to decide whether mutual corroboration is applicable. If the jury does not consider both (or more) complainers to be credible and reliable, or if the jury consider that mutual corroboration does not apply, an acquittal must follow. How a particular jury goes about these tasks, which are concerned with the assessment of matters of fact, is for the jury to determine. There may be a degree of circularity, but it is none the worse for that. In some cases the value of the other complainer’s evidence in the assessment of credibility and reliability may be minimal. In others, where the similarities are great, it may be considerable. These considerations fall firmly into the jury’s province and involve a practical application of the jury’s combined intelligence and experience.”

In relation to the third appeal ground, he said: “[T]he trial judge’s directions on the application of mutual corroboration were unexceptionable. He stressed the need to hold that it could only apply if the jury held that the incidents were parts of a single course of conduct systematically pursued by the appellant. He focussed the jury’s mind on the necessity to find an underlying similarity in the conduct. He said that mutual corroboration had to be applied with caution, particular where there were significant intervals of time and only two complainers. The reference to “broadly similar conduct” was made in the context of a direction that it was not necessary for the nature of the conduct to involve the same crime or level of seriousness. No misdirection is apparent. This ground also fails, with the consequence that the appeal against conviction is refused.”

As for the appeal against sentence, he stated: “There was no basis for an extended sentence. For such a sentence to have been imposed, the sentencing judge would have to have been satisfied that, upon his release, the appellant would pose a risk of serious harm to the public. Given that the most recent of the offences occurred at least 13 years ago and the appellant was now aged 56, it is difficult to say that, even were he to be released on parole in 4 or 5years time, the appellant would pose such a risk; although that is what the Criminal Justice Social Work Report concluded. Were it not for the significantly low level of the appellant’s intelligence, the period of custody selected by the trial judge could not be regarded as other than appropriate. Once the appellant’s level of intellectual functioning is taken into account, the court is satisfied that the sentence is excessive. It will quash that of 10 years and substitute one of 8 years imprisonment.”

© Scottish Legal News Ltd 2020

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