Introduction

In the case titled Crown Appeal against Sentence by HMA against CM ([2024] HCJAC 39), the Scottish High Court of Justiciary addressed a critical issue concerning the sentencing of multiple rape convictions. The respondent, CM, was initially sentenced to six years' imprisonment for four counts of rape. However, the Crown Appellant contested this sentence as unduly lenient, prompting a comprehensive appellate review.

The key issues revolve around the adequacy of the initial sentencing, the application of legal precedents, and the interpretation of aggravating factors under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The parties involved include the Crown Agent as the appellant and CM as the respondent, with representation from P Harvey AD and S Gilbride; Keith Leishman & Co respectively.

Summary of the Judgment

The High Court of Justiciary, presided over by Lords Doherty, Armstrong, and Beckett, delivered a unanimous decision on September 24, 2024. The court found the initial six-year sentence imposed by the trial judge to be unduly lenient. The appeal was allowed, resulting in a revised in cumulo sentence of nine years' imprisonment, with seven months attributable to statutory aggravations under the 2016 Act.

The judgment emphasized the severity and persistent nature of the respondent's offenses, the significant psychological harm inflicted on the victims, and the failure of the trial judge to appropriately weigh these factors against the mitigating circumstances.

Analysis

Precedents Cited

The court extensively referenced several key cases to shape its decision:

• HM Advocate v Fergusson [2024] HCJAC 22 – Provided guidance on sentencing leniency.
• HM Advocate v Bell (1995) SLT 350 – Established the test for determining leniency in sentencing.
• McGowan v HM Advocate [2024] HCJAC 20 and AP v HM Advocate [2024] HCJAC 31 – Highlighted the importance of statutory aggravations.
• Other comparative cases such as Ibbotson v HM Advocate (2022) SCCR 265, Simion v HM Advocate (2023) SLT 647, and HM Advocate v LB [2023] JC 97 – Demonstrated sentencing trends for multiple rape convictions.

These precedents underscored the necessity for judges to consider both the cumulative impact of multiple offenses and the specific aggravating factors that elevate the gravity of each charge.

Legal Reasoning

The court applied the test from HM Advocate v Bell to assess whether the sentence fell within the acceptable range. Key points in the court's reasoning included:

• Seriousness of Offenses: The persistent and repeated nature of the rape charges, especially those committed against a vulnerable victim, indicated a high level of culpability.
• Aggravating Factors: The court found that the trial judge did not adequately apply the statutory requirements for aggravations under the 2016 Act, specifically failing to quantify the difference in sentencing due to these aggravations.
• Comparative Sentencing: By comparing this case to similar cases with more severe sentences, the court established a benchmark for appropriate sentencing.
• Mitigating Factors: Although the respondent had a pro-social background and no prior convictions, the court determined that these factors did not sufficiently mitigate the severity of the offenses.

The court concluded that a nine-year sentence was proportionate, aligning with the principles of totality and fairness, and adequately reflected the gravity of the respondent's actions.

Impact

This judgment reinforces the Scottish High Court's stance on the stringent application of sentencing guidelines for multiple and aggravated rape convictions. It sets a clear precedent that leniency in such serious cases is unacceptable and underscores the importance of properly addressing statutory aggravations. The decision is likely to influence future cases by:

• Encouraging judges to meticulously apply aggravating factors as prescribed by law.
• Guiding appellate courts in evaluating the appropriateness of sentencing in multiple offense cases.
• Acting as a deterrent for lenient sentencing in cases involving significant harm and repeated offenses.

Complex Concepts Simplified

• In Cumulo Sentence: A type of sentencing where multiple sentences for different offenses are served simultaneously rather than consecutively.
• 2016 Act Aggravations: Specific provisions under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 that enhance the severity of sentences for certain factors, such as offenses against a partner or ex-partner.
• Totality Principle: A sentencing principle that ensures the total length of a sentence is proportionate to the combined seriousness of all offenses committed.
• Sentencing Young People Guideline: Guidelines that emphasize rehabilitation and the consideration of a young offender's age and maturity. Although not directly applicable in this case, aspects of it remained relevant.
• Culpability: The degree of responsibility and blameworthiness of the offender, influenced by factors like intent, premeditation, and awareness of wrongdoing.

Conclusion

The Crown Appeal against Sentence by HMA against CM solidifies the High Court of Justiciary's commitment to upholding stringent sentencing standards for severe and repeated sexual offenses. By rectifying the initial sentence deemed unduly lenient, the court reinforces the necessity of balancing mitigating factors against the profound harm inflicted on victims. This judgment serves as a critical reference point for future cases, ensuring that justice is appropriately served and that sentencing remains a robust tool in addressing and deterring serious crimes.

The decision underscores the judiciary's role in meticulously applying legal standards and precedents to safeguard the rights and well-being of victims while ensuring fair and proportionate punishment for offenders. As a result, this case not only addresses the immediate injustice but also contributes to the broader legal framework governing sexual offenses in Scotland.