St V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Clark Of Calton,Lord Menzies,Lord Justice Clerk |
| Neutral Citation | [2014] HCJAC 31 |
| Docket Number | XC741/13 |
| Year | 2014 |
| Published date | 11 April 2014 |
| Court | High Court of Justiciary |
| Date | 11 April 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Menzies Lord Drummond Young | [2014] HCJAC 31 XC741/13 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the Reference from the Scottish Criminal Cases Review Commission by ST Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: CM Mitchell; T Duncan & Co, Montrose
Respondent: Prentice QC AD; the Crown Agent
21 March 2014
[1] On 24 May 2011, at the High Court in Dundee, the appellant, who was then aged 53, pled guilty to four charges involving the rape of and incest with his two sisters over the period from 1971 to 1979 when he was aged between 13 and 21. The offences involving the first sister occurred between the years 1971 and 1974, when the appellant was aged between 14 and 17 and the complainer between 10 and 13. The offences involving the second sister occurred between 1977 and 1979, when the appellant was aged between 19 and 21 and the complainer was aged between 11 and 13. The appellant's offending ceased when each complainer began menstruating.
[2] The first disclosure of the offences by the complainers occurred respectively in 2000 and 2001, when one of the sisters was in hospital following upon a drugs overdose and the other had subsequently attempted suicide. By that time, both complainers had significant psychiatric histories, notably depression, with sexual abuse by the appellant being one of the primary causes. Both sisters have been deeply affected by a sense of shame. The offences were first reported to the police by both complainers in 2008.
[3] The sentencing judge selected a headline sentence in cumulo of 10 years for the rape offences and 5 years concurrent on the incest charges. These were discounted, for the early plea prior to a trial diet, to 9 years and 41/2 years respectively. In selecting the appropriate sentence the judge took into account the age of the appellant at the time of the offending and, in particular, that it had commenced when he was a child. He was a first offender. He had had an unhappy dysfunctional childhood and maintained that he had been sexually abused by various relatives between the ages of 9 until 12. He had been appalled, upon reflection, about his behaviour and the psychological toll which it had taken on his sisters. He was assessed, in the social enquiry report, as at a low risk of re-offending. The social enquiry report recorded that the appellant admitted that he had known that raping his sisters was wrong at the time of the offences. In answer to a question posed during assessment by the Tay Project about why he had committed the offences, he had said, after a pause, that he had done so because he "enjoyed it" and it gave him power over his victims. The appellant's life subsequent to the offences involved him being married on three occasions. At the time of sentencing he was in a steady relationship. He had been employed for most of his adult life and had had a steady work record at a recycling plant for some 9 years.
[4] Leave to appeal against the sentence was initially refused at first sift as being unarguable. It was granted at second sift and the appeal proceeded to a hearing on 9 March 2012. The appeal was refused. In delivering the ex tempore Opinion of the Court, Lord Emslie said:
"[3] According to the sentencing judge ... these were very serious offences committed against the appellant's younger sisters over periods when each was aged between 10 and 13. By the time matters came to light they were in their 40s and had suffered psychiatric difficulties, including low mood and depression, with sexual abuse as a primary cause. ... By the time that these repeated offences ended the appellant was in his early 20s and apparently well aware of the effect of his activities.
[4] Taking all of these circumstances into account, we are not persuaded that the sentencing judge exercised his discretion on any wrong basis. He was well entitled...
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