Her Majesty's Advocate V. Stephen Cooperwhite
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Justice Clerk,Lord Eassie |
| Neutral Citation | [2013] HCJAC 88 |
| Docket Number | XC212/13 |
| Date | 21 June 2013 |
| Published date | 23 July 2013 |
| Court | High Court of Justiciary |
| Year | 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2013] HCJAC 88 | |
| Lord Justice Clerk Lord Eassie Lord Bracadale | Appeal No: XC212/13 OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK, in CROWN APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against STEPHEN COOPERWHITE Respondent: _______ |
Appellant: I McSporran, AD; the Crown Agent
Respondent: Ross; Hughes Dowdall, Glasgow
21 June 2013
General
[1] On 27 February 2013, at the High Court in Glasgow, the respondent was found guilty of charges that libelled that:
"(4) on an occasion between 1 September 2002 and 31 October 2002 ... at ... you ... did assault MD ... place your hand on her shoulder, hold her down against a mattress, pull her pants to the side, repeatedly ignore her pleas that you stop and her attempts to push you away and you did rape her; and
(5) on various occasions between 1 November 2009 and 20 August 2010 ... at ... you ... did assault VG ... and did:
(a) whilst she was asleep and incapable of giving or withholding consent, attempt to penetrate her vagina with your penis;
(b) repeatedly ignore her pleas that you desist from having sexual intercourse with her and you did rape her."
On 22 March 2013, the trial judge sentenced the respondent, who was aged 35 at the time, to six years imprisonment.
The Offences
[2] The complainer MD was aged 35 at the time of the trial. She is a teacher. She had met the respondent while she was studying at university in 1997. She became pregnant and the couple began living together shortly after the birth of their child in 1998. The complainer obtained employment in the Western Isles and the family moved there in about July 2000. In July 2001 the couple married. They engaged in sexual intercourse on an intermittent basis, although the complainer did not regard this as particularly successful. In July 2002, the complainer discovered that she was almost five months pregnant. She was diagnosed with placenta praevia. The trial judge notes (para [20]) that both the complainer and the respondent were aware of advice from the local medical staff that this condition made it dangerous to have sexual intercourse. The complainer, in particular, understood that intercourse could cause a haemorrhage which, given her remoteness from specialist care, could be fatal to both mother and child. On that basis the complainer refused to have sexual intercourse with the respondent prior to the birth of the child. The respondent had remained keen to have such intercourse. The only medical evidence at the trial, from the complainer's current general practitioner, was that it might be safe to have "gentle intercourse", although the doctor accepted that an obstetrician might disagree with that assessment.
[3] One night, towards the end of September 2002, the complainer was dozing in bed when the respondent joined her and put his hand on her shoulder. He began to move her pants to the side, but she had said either "go away" or "no". She told him to stop what he was doing, but he continued to try to have sex with her. She could feel his naked penis in the area of her vagina. She kept saying, "no we can't, leave me alone, no," but he persisted. He held her down with his hand on her shoulder more firmly, although she struggled to push him away with her left elbow. He penetrated her with his penis and she gave up struggling as she was concerned that this could itself be harmful to the child. The respondent continued until ejaculation, after which he got up and left the room.
[4] Although the complainer attended at her GP's surgery within a day or so, in relation to minor vaginal bleeding, she did not complain about being raped. She did not report the incident to the police until 2010, some eight years later. She had on the other hand told her solicitor about it in connection with civil proceedings. After the incident, the complainer had returned to the mainland. The parties had separated and ultimately divorced in 2006. The child was born and the respondent continued to have contact with both children on a fortnightly basis.
[5] The complainer, VG, who was also 35 at the time of the trial, commenced a relationship with the respondent in 2008. They began living together and eventually moved into a flat in joint names. The complainer decided to join the police force. This involved considerable training course work and examinations. It caused a degree of friction between the complainer and the respondent. The complainer would often go to bed quite early, exhausted by the demands of the course and looking after her young child. The respondent would come to bed and try to initiate sex. The complainer would generally be unresponsive and indicate that she was too tired. Sometimes the respondent accepted this and desisted. There were, however, occasions when the complainer would wake up and find the respondent trying to have sex with her. He would have removed her underwear or pyjamas and would be lying on top of her, his penis erect. On some occasions she would say "no" but he would have sex with her anyway. The frequency of this was not entirely clear from the evidence, but it appears to have happened on at least four occasions. Throughout the period during which these rapes took place, consensual intercourse also occurred. The last occasion when the complainer was raped was in August 2010.
[6] The complainer succeeded in becoming a police officer. In early course, she told a fellow police officer about what had been happening and the matter was reported to a senior officer. She gave a statement concerning the rapes for the first time in September 2010. Meantime, she had found divorce papers belonging to the respondent which contained a reference to the allegation of rape of the complainer MD. A connection was therefore made with MD, who would not otherwise have reported the rape herself.
[7] The respondent gave evidence and denied that he had raped either complainer, although he was not able to offer a convincing explanation as to why two apparently responsible women should make false complaints and persist with them through to trial. In relation to MD, he said that he had been aware of the danger presented by her pregnancy but that he did not have intercourse with her during that time. Any intercourse with VG had been consensual and never whilst she had been asleep.
Sentence
[8] At the time of sentencing, the trial judge had a Criminal Justice Social Work Report and one from the Pathways Partnership Project. The respondent continued to deny culpability and explained to the social worker that he thought that the complainers had conspired against him in order to cause trouble. Not surprisingly, in these circumstances, it was concluded that he displayed no victim empathy or remorse.
[9] In mitigation it was said that the respondent had had a stable upbringing with supportive parents, both of whom were still alive. Since leaving school with limited qualifications, he had engaged in a broad range of employment, mostly in the retail trade. He had joined the police in 2009, but had been suspended following upon allegations of assault on VG's child, of which he was ultimately convicted in 2012. This had prompted his resignation from the police and, coupled with the criminal proceedings, feelings of despair with some suicidal ideation. He had been unemployed since resigning.
[10] The respondent informed the social worker that he did not intend to embark upon any further relationships with adult females and was therefore of the view that he would not commit any further offences. The CJSWR had reported the respondent as being at "moderate risk" of re-offending, using the LSIR:SV risk assessment tool. A more detailed assessment had been carried out by the Pathways Partnership Project. They had used the static Risk Matrix 2000 assessment tool, which had brought out a "low category" risk of re-offending. A static and dynamic assessment tool (SA07) suggested that the RM2000 category had perhaps underestimated the risk which the respondent posed.
[11] In selecting the sentence he did, the trial judge explains that he treated the crimes as serious, involving the rape of two different women with whom the respondent was living at the time. He took into account, as aggravating features, the risk to the complainer and her child in respect of the rape of the first complainer and the repetition of incidents in relation to the second complainer. He also noted the various mitigating factors set out above.
Grounds of appeal and submissions
[12] The Note of Appeal, so far as relevant and insisted upon, complains that the sentence selected was "unduly lenient". In submissions, particular attention was focused upon the element of danger to the first complainer and her unborn child, the course of conduct in relation to the second complainer and the lack of empathy which the respondent displayed; indicating that the risk posed by him was greater than the low category. It was suggested that the circumstances merited the imposition of an extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. Overall, the sentence did not reflect the gravity of the offences, the need for retribution and deterrence, as well as the protection of the public.
[13] It was accepted, under reference to HM Advocate v Bell 1995 SCCR 244, that, for a sentence to be seen as unduly lenient, it required to fall outside the range of sentences which a trial judge, applying his mind to all relevant factors, could reasonably have considered appropriate. Nevertheless, under reference to Ramage v HM Advocate 1999 SCCR 592, HM Advocate v Shearer 2003 SCCR 657, Hercus v HM Advocate 2004 SCCR 140, Petrie v HM Advocate 2012 JC 1 and Greig v HM Advocate 2012 SCCR 757, it was contended that the sentence selected by the trial judge had strayed outside the appropriate range.
[14]...
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