Former army captain jailed for repeated rape has sentence lengthened by two years

About this case:

• Citation:
  [2025] HCJAC 28
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Calum MacGregor was sentenced to four years and six months of imprisonment after being found guilty of a charge of rape and sexual assault by penetration. The Crown argued that, by failing to recognise the true gravity of his offending and giving undue weight to mitigating factors, the sentencing judge had been unduly lenient.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Doherty and Lord Armstrong. The Lord Advocate, Dorothy Bain KC, appeared for the Crown as appellant and Iain McSporran KC appeared for the respondent.

Repeated acts of resistance

After exchanging messages, the respondent and the complainer met for the first time at a restaurant in Edinburgh on 14 December 2021. They spent about an hour there before walking back towards the complainer’s home. Although they had not discussed it previously, the complainer invited the respondent in for a drink. Despite the complainer telling him that she did not want to do anything, he pushed her onto her bed and repeatedly penetrated her.

The following day, the complainer sought medical attention after telling her friend and work colleague TH about the events of the previous evening. She was met by the police at the hospital, where a doctor recorded her as having extensive bruising to both her breasts and a superficial abrasion to her genitalia which was still bleeding. In her victim statement, the complainer explained that she was unable to work for six months following her rape and was diagnosed with PTSD.

The respondent was a captain in the Royal Engineers Regiment but was discharged as a result of his conviction. In his CJSWR the reporting social worker noted that he did not accept that his actions constituted rape or sexual assault. At trial he had maintained that all activity was consensual. A number of character references were provided by friends, family, and his current partner, who observed that the offending was “out of character” for him and “impossible to reconcile” with the person they knew.

In her report, the sentencing judge stated that she assessed both culpability and harm at the lowest level under the draft guidelines for rape prepared by the Scottish Sentencing Council, which had not yet been invited for approval by the High Court. She also noted a previous case, HMA v MG (2023), in which a four-year sentence given to a doctor of previously exemplary character for rape was not considered unduly lenient.

For the Crown it was submitted that the respondent, a physically fit young man, had repeatedly restrained the complainer and pinned her down in spite of her repeated acts of physical resistance. The judge had focused unduly on some of the complainer’s decisions in a traumatic event and failed to recognise the significance of the multiple rapes.

Severe psychological damage

Lord Beckett, delivering the opinion of the court, said of the seriousness of the offence: “Whether they are considered as features of culpability or aggravating features, particular considerations in sentencing in this case ought to have included events occurring in the complainer’s home, the respondent’s persistence in the face of resistance, his use of force, causing significant and painful injury to the complainer’s breasts, the different forms of sexual assault inflicted including oral rape, vaginally raping the complainer twice, [and] ejaculating in her mouth.”

He continued: “A charge containing two or more acts of rape will generally be more serious than a charge containing one. This court has recognised that repetition usually makes a crime more serious, certainly in the cases of sexual offences. The trial judge misdirected herself in assessing harm as being at the lower end of the scale. She should not have used a draft guideline as if it were in force, but in doing so she misapplied it in evaluating harm.”

Considering the harm caused to the complainer in more detail, Lord Beckett said: “She became afraid of crowded places and being in public, leading to isolation and disengagement from previous activities Even three years later, she remained afraid of the dark, had difficulty sleeping because of distressing flashbacks and continued to receive intensive psychological therapy. We cannot accept that this was harm at the lower end of the scale. It can reasonably be considered severe psychological damage.”

Responding to a suggestion that the online dating element was an aggravating factor, he added in postscript: “We did not consider that the mere fact that the complainer and respondent met through an online dating platform indicated a higher sentence than would otherwise be appropriate. Today huge numbers of people, especially young people, contact each other using such platforms. There was no suggestion that the respondent’s use of the platform was predatory. Nevertheless, in light of what happened in this case, it is important to spell out the law on consent to those who use dating services, and particularly sites promoting an expectation of sexual activity.”

The court therefore passed sentence of new on the respondent and imposed a sentence of imprisonment for six years and six months.