James Petrie V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lady Cosgrove |
| Judgment Date | 12 January 2011 |
| Neutral Citation | [2011] HCJAC 1 |
| Published date | 12 January 2011 |
| Court | High Court of Justiciary |
| Docket Number | XC464/10 |
| Date | 12 January 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Bonomy Lady Cosgrove | [2011] HCJAC 1 Appeal No: XC464/10 OPINION OF THE COURT delivered by LORD BONOMY in APPEAL AGAINST SENTENCE by JAMES PETRIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Goodfellow, Solicitor Advocate; Drummond Miller for Graeme Murray & Co, Solicitors, Aberdeen
Respondent: Henderson AD; Crown Agent
12 January 2011
[1] On 28 May 2010 the appellant was found guilty by majority verdict of the following charge:
"On 24 May 2009...you...did assault DM...repeatedly insert your fingers into her private parts, struggle with her, shout and swear and repeatedly utter threats of violence towards her, seize her hand and repeatedly attempt to place it on your private member, seize her by the body and push her onto a bed, lie on top of her and restrain her there, bite her on the face, and repeatedly rape her all to her injury."
On 23 June 2010 an extended sentence of 10 years (comprising a custodial term of 7 years and an extension period of 3 years) was imposed with effect from 28 May. The appellant appeals against the custodial term as excessive on the ground that the trial judge gave insufficient weight to (a) the appellant's personal circumstances, (b) the mitigatory circumstances, particularly the relationship between the complainer and the appellant, and (c) the deletions from the libel.
[2] In a well-focused and concise submission Ms Goodfellow for the appellant identified the factors falling under each of these three categories that, in her submission, taken together demonstrated that the custodial term was excessive. She also relied upon the Opinion of the Court in Ramage v HM Advocate 1999 SCCR 592 in which there were a number of factual similarities and a sentence of 3 years 6 months was imposed. She invited us to quash the custodial term and impose a shorter one
[3] The appellant and the complainer were in an ongoing relationship which had lasted about 2 years. He split his time between his mother's house and the appellant's home, where he stayed "quite a lot". He and the complainer engaged in sexual intercourse on a regular basis. They had returned from a party at which both had consumed too much alcohol. The complainer got into bed where she thought the appellant was already asleep. She woke to find him touching her private parts. When she told him that she "did not want to", he became annoyed. When she told him to go home (to his mother's house) he got angrier. In spite of her crying and telling him clearly that she did not want to engage in sexual activity and that he should get off her he persisted and committed the offence. The reference to "repeated" rape reflected the fact that there were two acts of penetration, one following almost immediately after the other. It was plain...
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