Appeal Against Sentence By Her Majesty's Advocate Against Gordon Collins
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Turnbull,Lady Clark Of Calton |
| Judgment Date | 25 November 2016 |
| Neutral Citation | [2016] HCJAC 102 |
| Published date | 25 November 2016 |
| Court | High Court of Justiciary |
| Date | 25 November 2016 |
| Docket Number | HCA/2016 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 102
HCA/2016/000398/XC
Lord Brodie
Lady Clark of Calton
Lord Turnbull
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST SENTENCE
By
HER MAJESTY’S ADVOCATE
Appellant
against
GORDON COLLINS
Respondent
Appellant: McSporran QC (sol adv) AD; Crown Agent
Respondent: Scott QC (sol adv), Labaki; Capital Defence Lawyers
25 November 2016
Introduction
[1] On 27 April 2016 at Edinburgh High Court, the respondent was found guilty of a series of historic sexual offences. The respondent was convicted of five charges of indecent behaviour towards girls aged between 12 and 16, contrary to section 5 of the Sexual Offences (Scotland) Act 1976 (charge 1) and section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (charges 2, 5, 6 and 8) respectively. He was also convicted of a charge of rape at common law (charge 7). The statutory charges libelled that the respondent kissed and fondled the complainers MM, AF, CM and HH. Charge 7 libelled that:
“on various occasions between 1 March 2004 and 28 February 2005, both dates inclusive, at Northfield Young Persons Unit, 34 Northfield Drive, Edinburgh, you … did indecently assault CM … and did enter her bedroom at night, shut the door, push her on to her bed, sit on her bed beside her, place your hand in her trousers and underpants, handle her vagina, penetrate her vagina with your fingers, remove your lower clothing, remove her lower clothing, lie on top of her, handle her naked breasts, kiss her on her neck, kiss her on the mouth, penetrate her vagina with your penis, and ejaculate inside her vagina and you did repeatedly rape her”.
[2] On 29 June 2016 the trial judge imposed a cumulo sentence of 6 years’ imprisonment. The Crown appeals against the sentence on the grounds of undue leniency.
Evidence
[3] The offences were committed between July 1995 and August 2006 at two secure residential units for children and young persons: Northfield Young Persons Unit (“Northfield”) and St Katherine’s Secure Unit (“St Katherine’s”), both in Edinburgh. Northfield was an “open” unit: residents were allowed a degree of freedom to come and go from the unit as long as they notified staff; residents also left the unit each day to attend school before returning to the unit in the afternoon. St Katherine’s, on the other hand, was a “secure” or “lock-down” unit: residents were not permitted to leave without supervision and received their schooling on site.
[4] The respondent was employed as a residential care worker in the units at the time. The Crown relied on the doctrine of mutual corroboration to corroborate the accounts of the four complainers, the offences having come to light following a cold case review that joined together complaints from separate former residents of the young people’s units.
[5] Each of the four complainers was in some way troubled or had experienced a difficult upbringing. The evidence disclosed that over a period of some 11 years the respondent groomed each of the complainers, gaining their trust and making them feel special, before sexually abusing them. The offending escalated, in the case of the complainer CM, into penetrative sexual abuse. As a result of their own difficulties, the complainers did not report what had happened at the time; their evidence disclosed that they had, in fact, tended to feel responsible for what had occurred.
The evidence of the complainer MM (charges 1 and 2)
[6] MM was aged 33 and had resided at Northfield between 1995 and 1997 when she was a teenager. She had experienced a troubled upbringing and had been placed in Northfield for her own safety. The unit had between 8 and 10 young people resident at any one time. It was a mixed unit, although MM recalled that there were more girls there than boys during her stay. She remembered the respondent very well. He was seen by residents as the most approachable member of staff and he would frequently socialise with them.
[7] In 1995, when MM had been at Northfield for a few months, the respondent approached her when no other staff or residents were present. The respondent pulled her towards him and kissed her on the lips; afterwards he told her not to tell anyone. He continued to flirt with her and would repeatedly touch and squeeze her bottom. MM stated that the respondent made her feel special; she felt as if she was in a relationship with him. MM also spoke to having had a sexual relationship with the respondent. Although they had full penetrative sex on about three occasions, the respondent was not charged with an offence, but this evidence was led in terms of a docket appended to the indictment. The relationship aroused suspicions and an internal investigation took place in 1997. When she was interviewed in July 1997 in connection with an allegation that the respondent was having an inappropriate relationship with her, MM denied that there was such a relationship. In 2014, however, she gave a statement to police who had contacted her in relation to the investigation that led to the present charges.
The evidence of the complainer AF (charge 5)
[8] AF, aged 26, had been a resident at Northfield in late 2001 and 2002 when she was about 13. She met the respondent at the unit and initially regarded him as very pleasant; he would take her and other residents for ice cream and give them sweets. AF gave evidence that after she had been at the unit for several months, the respondent sat next to her on a sofa in the unit’s sitting room. The respondent edged towards her and lifted her on to his knee. He then put his face into her neck and made a low growling noise whilst touching her private parts over her clothing. AF stated that the respondent continued to rub her private parts with his hand. She initially froze during the incident but she then stood up, left and ran upstairs to her bedroom. At the time, AF told no one about what had happened. She described herself as having been emotionally damaged by the incident. After he had assaulted her, the respondent acted as if nothing had happened.
The evidence of the complainer CM (charges 6 and 7)
[9] CM was aged 26. She had been in the care system from the age of 12 and was placed at Northfield when she was about 14 after her foster care placement broke down. Prior to being in care, she had been exposed to violence at the hands of her stepfather. CM described the respondent as being nice at first; he gave her sweets and, occasionally, cigarettes. CM spoke to the respondent about her troubled upbringing and confided in him that her stepfather had physically abused her.
[10] After CM had begun to confide in the respondent, he took her in his car to watch a football match in Motherwell. When the match ended, their team having won, the respondent jumped out of his seat and kissed CM on the mouth. She was taken aback by this. They returned to Northfield in the respondent’s car. On the journey home, he tried to touch her leg by putting his hand on her knee; he then attempted to place his hand on her private parts over her clothing. CM gave evidence that this made her feel “horrible”. She returned to her bedroom when they returned to Northfield. CM decided that she did not really like the respondent after that and tried to avoid being alone with him. A couple of weeks later, however, the respondent again started trying to touch her sexually, usually when they were in communal areas of the unit but with no one else present. These incidents formed the basis of charge 6.
[11] CM also gave evidence of having been raped by the respondent on four occasions over a period of just over a year (charge 7). On the first occasion, the respondent came into her room and shut the door behind him. He kissed her on the face and around the neck before penetrating her until he ejaculated. CM did not want to have intercourse with the respondent. She described having kept her eyes shut until the respondent had finished whereupon he said to her that: “It will be our wee secret”. CM did not tell anyone what happened for fear of being disbelieved. The respondent then raped her on another three occasions, again within her room in the unit. On each occasion CM was unable to do anything; she lay still and froze.
The evidence of the complainer HH (charge 8)
[12] HH was aged 25 and had been a resident at Northfield as a young teenager; however, the incidents to which she spoke took place when she was aged 15 and a resident at St Katherine’s. HH had been admitted there against her will. The respondent was working at St Katherine’s at the time. HH remembered him from Northfield and regarded him as friendly; she was comforted to see a familiar face in the secure unit. HH gave evidence that initially the respondent acted professionally towards her; however, he soon started giving her more hugs and cuddles, and always seemed to be the member of staff who answered her buzzer when she called from her room. Although HH enjoyed the attention at first, she began to feel uncomfortable. When the respondent cuddled her he would make a growling sound and nibble at her neck. On occasion he would touch her bottom and make a grunting noise. HH also spoke to a further incident where the respondent walked up behind her and cupped his hands around her breasts.
[13] HH recorded the incidents in her diary. She accepted that she had felt something of a special bond with the respondent at the time but explained that she was emotionally confused. HH did not tell the other members of staff what was happening because she did not think that she would be believed.
Mitigation
[14] The trial judge in her report to this court summarises the plea in mitigation that she had heard as follows:
“[Counsel] emphasised the troubled personal circumstances during youth of Mr Collins himself. He pointed out that apart from two minor convictions in the mid-1970s he had no criminal convictions of note and certainly...
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