High Court upholds four-year prison sentence given to former GP who raped woman in Stirling hotel room

About this case:

• Citation:
  [2023] HCJAC 3
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

The respondent, MG, a foreign national with indefinite leave to remain in the UK, was convicted after trial of raping the 19-year-old complainer after inducing her to go to his hotel room and rendering her unconscious using an intoxicating substance. It was the Crown’s position that the sentence was unduly lenient having regard to the circumstances and the object of sentencing.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Matthews and Lord Boyd of Duncansby. The Lord Advocate, Dorothy Bain KC, appeared for the Crown, and Gravelle, solicitor advocate, for the respondent.

Degree of premeditation

The respondent, a married man with three children, met the complainer through Tinder, where he pretended to be a 23-year-old junior doctor. He was, in fact, 35. After a few weeks of non-sexual messaging, they agreed to meet at a hotel in Stirling, where he had booked a room for the night. After drinking and chatting over the evening, the complainer indicated she needed to go to the bathroom. The respondent told her that the toilets in the hotel bar were closed and suggested she use the one in his room.

When the complainer came out of the toilet, the respondent gave her a mug and told her it contained pink gin, which she found to be very strong. It was the complainer’s evidence that having drunk the contents of the mug she lapsed in and out of consciousness over the next three hours, during which time she was raped by the respondent, who had taken Viagra. When she eventually returned home she contacted the police and was found to have recent injuries including a 6cm abrasion to her left buttock and a bruise on her thigh.

It was submitted for the Crown that the sentence imposed failed to meet the objectives of protection of the public and expressing disapproval of the offending behaviour. The sentence did not reflect the gravity of the offence, the degree of premeditation, the complainer’s vulnerability from being under the influence of an intoxicating substance, and the prolonged nature of the incident. A sentence in the range of seven to eight years’ imprisonment would have been a fair and appropriate sentence in the circumstances.

For the respondent it was submitted that there was no evidence he had brought the gin and Viagra with the prior intention of committing a sexual offence, and his position was he brought them in the hope of facilitating a consensual sexual encounter. The public was sufficiently protected by the imposed sentence, as beyond the initial custodial period he would be unable to resume practice as a GP and would be the subject of notification requirements for an indefinite period upon his release with no right of review within 15 years.

Not excessively lenient

Delivering the opinion of the court, Lady Dorrian said of the trial judge’s analysis: “The trial judge explains in his report the process by which he arrived at the sentence of four years. It appears that he considered what would be the appropriate sentence for the offence of rape of which the accused was convicted, by which he reached what he described as a ‘headline sentence’ of 5 years. He then reduced that by one year to reflect what he considered to be the personal mitigation available to the accused, in the form of his hitherto good character, and the loss of his profession.”

She continued: “We consider that a sentence of four years for the offence in question is undoubtedly a lenient one: the question is whether it meets the test in HM Advocate v Bell (1995) and may be considered to be unduly lenient.”

Examining the factors relied on by the Crown, Lady Dorrian said: “The professional position of the respondent has no bearing on the offence, which was committed in a private capacity, and through contact made on Tinder not through work. The appellant is somewhat older than the complainer but there is nothing in the circumstances which makes age a particularly relevant factor. That leaves the element of duplicity, the alleged significant element of pre-planning, and the complainer’s vulnerability through intoxication.”

She went on to say: “We accept that as a result of her condition the complainer would be more vulnerable to being taken advantage of, and less able to assert herself than she might otherwise have been. We question, however, whether it is exactly correct to say, as the Crown submitted, that her circumstances were therefore such as to render her ‘particularly vulnerable to even greater harm than is likely to be suffered by other victims of a similar offence’. There is nothing in the circumstances to suggest that she was vulnerable to greater harm from the offence than a non-intoxicated person would be.

Lady Dorrian concluded, referring to the Definitive Guideline on rape applicable in England and Wales: “Using the Guideline as a cross-check, we consider that it would not be appropriate to classify it as other than in category 3B, which has a range of 4-7 years, and a starting point of five years. On that basis the sentence selected by the trial judge can be seen to be lenient, but not excessively so, and the appeal must fail.”