Appeal Against Sentence By Her Majesty's Advocate Against Ssk
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk |
| Neutral Citation | [2015] HCJAC 114 |
| Published date | 26 November 2015 |
| Docket Number | HCA/2015 |
| Court | High Court of Justiciary |
| Date | 26 November 2015 |
| Year | 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 114
HCA/2015/2924/XC
Lord Justice Clerk
Lord Bracadale
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST SENTENCE
by
HER MAJESTY’S ADVOCATE
Appellant;
against
SSK
Respondent:
Appellant: Niven-Smith AD; the Crown Agent
Respondent: A Ogg, Solicitor Advocate; JC Hughes & Co, Glasgow
26 November 2015
General
[1] On 6 May 2015, at the High Court in Glasgow, the respondent was found guilty of 7 charges involving sexual offences against 2 of his former partners and their children. The first (charge 1) was one of using lewd practices on various occasions against AdM, a boy aged between 9 and 10, in 2007-2008, including handling the boy’s penis, attempting digital penetration of his anus, compelling the boy to masturbate him and oral penetration of the boy with his penis. The second (charge 2) was indecent assault, again on various occasions during the same time period, against the boy in the form of attempted sodomy. The third (charge 7) was using lewd practices on various occasions against TD, a girl aged between 12 and 14, in 2008 to 2010, including digital vaginal penetration, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. In relation to the adult complainers, the fourth and fifth (charges 13 and 15) were libels of indecent assault against CD in 2008 to 2010 in the form, first, of one incident of continued penile penetration of the anus after the withdrawal of consent and, secondly, of penile penetration of the anus on various occasions. The sixth (charge 18) involved anal rape of CD on various occasions from 2010 to 2013, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The seventh (charge 19) was the anal rape of AM, his wife, on one occasion in 2013, contrary to the same statutory provision.
[2] The trial judge imposed what ultimately amounted to an extended sentence of 7 years, with a custodial element of 5 years imprisonment. This was made up from separate custodial periods for each charge, viz.: charge 1, 2 years; charge 2, 3 years concurrent; charge 7, 18 months concurrent; charges 13, 15 and 18, 2 years consecutive; and charge 19, 1 year concurrent with that on charges 13, 15 and 18. The extended element related only to charges 13, 15 and 18. The trial judge explains that, had he been sentencing on charges 13, 15 and 18 separately, he would have selected periods of 1, 2 and 2 years concurrent.
Facts
[3] From 2006, the respondent was in a relationship with AM, who had 2 children, including AdM. He lived with AM periodically in 2007 and 2008 and they had a child together. Towards the end of 2008 all of the children became the subject of child protection orders. Shortly after that, the respondent and AM were married. Meantime, from 2009, the respondent had developed a relationship with CD, whom he described as his mistress. She had a daughter TD. The respondent stayed initially with CD overnight only occasionally, but came to live with her on a more frequent basis from 2011.
[4] Following the grant of an application under section 275 of the Criminal Procedure (Scotland) Act 1995, evidence was led of the participation of the respondent and both adult complainers, who did not know each other, in the “swinging” (partner swapping) scene in Glasgow and Paisley. There was evidence about the sexual promiscuity indulged in at swinging parties and the publication of many photographs of this conduct on social networking media.
[5] The respondent and AM had sex with various people at these parties. The judge refers to AM as a person who “acknowledged few if any sexual boundaries”. He quotes from her testimony about her sexual exploits, which provoked periodic “incredulous mirth” amongst the jurors. The respondent and AM had consensual anal sex at home. However, on one occasion, shortly before they separated, the respondent had returned home and told AM that he was going to have anal sex with her. She had refused to participate, but he had then done so forcibly. The trial judge describes the degree of force as “not great”. The libel included injury, but the judge was not clear on whether there was evidence of this. This rape was not reported to the police at the time. The judge classified the level of criminality and level of harm suffered as “minor”, involving only “a transient sense of violation”. He considered rape to be a species of aggravated assault and that this incident equated with an assault to injury which might have been prosecuted at summary level.
[6] AdM described the events libeled in charges 1 and 2 as occurring “loads of times” in his home when he was aged only 9 or 10.
[7] The respondent had met CD through an Internet dating agency. The trial judge describes her as “sexually confident” in relation to her involvement in the swinging scene. CD described an occasion when she had, at the respondent's request, agreed to try anal sex for the first time. This had been on the basis that they would stop if it were painful. It was painful, but the respondent had not stopped when asked to do so. He had had anal sex with her on 3 or 4 occasions without her agreement. None of the anal rapes were reported to the police at the time. They would not have been reported but for the police inquiries. Under reference to Stallard v HM Advocate 1989 SCCR 248 (LJG (Emslie) at 255), the judge refers to CD “condoning” or “acquiescing in” the rapes. He refers to CD freely choosing to continue to live with the respondent after the rapes had occurred. This he regarded as such “powerful mitigation” that he might have considered an admonition as an option, had the convictions involving CD stood alone.
[8] TD spoke to being sexually pestered by the respondent in her bedroom on frequent occasions, when she was about 13, and being digitally penetrated by him when she was 15. There were only 2 episodes involving physical contact.
Sentence
[9] The respondent was aged 44 at the time of sentence. In terms of the Criminal Justice Social Work Report, he was assessed as at medium risk of re-offending. He had continued to deny any sexual involvement with the children. His own childhood had involved sexual abuse.
[10] The trial judge acknowledges that the custodial element of the sentence which he imposed was “unlikely to be regarded as excessive”. However, he states in relation to the children that he had regard to his:
“impression of the effect of the offending on [the children] and of the effect that more severe punishment might possibly have, taking into account the guilt that child sex abuse survivors are often said to experience, particularly where family and relationship break-up is involved.”
The trial judge had been impressed by both children. AdM had forgotten his experiences, until the investigation had awakened his memories. The judge did not regard TD as vulnerable, but rather “robust and knowing”. He therefore attached little weight to her Impact Statement (not produced in the appeal). He had discounted any element of breach of trust (as distinct from power) in relation to the children as no such aggravation was libelled. A libel that AdM had been the respondent's step son had correctly been deleted.
[11] In relation to the adult complainers, the main thrust of the plea in mitigation was the impact of the offences against the background of general sexual promiscuity. The judge describes the offences as “essentially non-violent relationship rapes”. He reports that juries do not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences are disproportionate. In this context, he challenges the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers in being raped, then subject to: (a) the investigative process, (b) the wait for trial, (c) the cross-examination, (d) a possible acquittal; and (e) a return to the community with the stigma of having been disbelieved. The judge points to the spectrum of seriousness in rape sentencing as illustrated by Scottish practice and in the England and Wales Definitive Guideline (infra). He asks whether there is a lower custodial limit for rape sentences. He speculates that, but for the existence of 2 adult complainers and the libel of anal (as distinct from vaginal) penetration, no convictions would have followed. However, whilst considering that the rapes were “at the lower end of the seriousness scale” he reports that he did not regard the respondent's relationships with the complainers as mitigatory per se.
[12] The trial judge considered that the sentence was proportionate overall, in the sense of being “no more than is necessary”. He had originally considered that either a custodial or an extended term of 8 years might possibly have been appropriate, but had revised his view in light of the mitigation. The judge had regarded the respondent, who had not given evidence, as a “coward and a bully”, eking out “a benefit-grubbing existence ... sponging off women”. He did not regard him as representing a risk to the general public, as distinct from a class of vulnerable women and their children. The period of custody selected would suffice as a deterrent and the risk posed by the respondent would be managed during the years of supervision.
Note of Appeal and Submissions
Appellant
[13] The Note of Appeal contends that the overall sentence imposed fails to give adequate weight to the gravity of the crimes, the extended period over which they took place and the effect on the complainers. The crimes against the children had been committed when the respondent had been in a position of trust and in their own homes. They had involved force and threats.
[14] Had the Definitive Guideline on Sexual Offences applicable in England and Wales...
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