Re-calibrating Sentencing for Repeated Rape: HM Advocate v MacGregor ([2025] HCJAC 28)

1 · Introduction

The Appeal Court of the Scottish High Court of Justiciary, sitting as a three-judge bench and delivering its opinion through Lord Beckett (Lord Justice Clerk), allowed a Crown appeal against sentence in HM Advocate v Calum Donald Dennis MacGregor. The respondent, an army captain with no prior convictions, had received 4 years and 6 months’ imprisonment for a single indictment charge encompassing rape and sexual assault by penetration committed during a first in-person meeting arranged through an online dating application.

The Crown contended that the trial judge (at first instance) undervalued both culpability and harm, and gave disproportionate weight to personal mitigation, thereby producing an unduly lenient sentence. In overturning that sentence and substituting 6 years and 6 months imprisonment, the Appeal Court articulated four critical propositions that now amount to a new sentencing benchmark in Scottish rape jurisprudence:

Persistent, multi-modal sexual assault culminating in repeated rape within the same incident substantially elevates culpability.
Victim impact evidence establishing post-traumatic stress disorder (PTSD) will generally denote severe psychological harm, notwithstanding any outward composure of the complainer.
Personal mitigation based on exemplary character, professional status or collateral consequences (e.g., loss of career) carries limited weight in serious sexual offences.
Draft or foreign (English) sentencing guidelines may be used only as a cross-check; applying them mechanically or mis-applying their category thresholds is an error in law.

2 · Summary of the Judgment

The Court confirmed that the statutory test from HM Advocate v Bell (1995) for Crown appeals—sentence must fall outside the range a trial judge could reasonably impose—remains authoritative.
After enumerating aggravating features (home invasion context, physical restraint, oral rape, two vaginal rapes, ejaculation in mouth, painful breast injuries, and continuing psychological sequelae), the Court held that the trial judge’s 4½-year sentence was unduly lenient.
A headline custodial term of 6 years 6 months was set, back-dated to the original remand date.
The Court rejected the proposition that meeting through an online dating platform, of itself, justified either elevation or reduction of sentence, but emphasised the need to publicise the law of consent to users of such platforms.

3 · Analysis

3.1 Precedents Cited and Their Influence

The Court’s reasoning is anchored in a quartet of earlier cases:

HM Advocate v Bell (1995 SCCR 244) — restated the test for undue leniency and the deference ordinarily owed to the sentencing judge. Here, the Appeal Court found that deference was displaced because the judge mis-applied relevant factors.
HM Advocate v MG (2023 JC 68) — a previous Crown appeal where a 4-year sentence was found lenient but not unduly lenient. The trial judge relied on this as a benchmark; the Appeal Court explained why MG should not serve as a precedent, highlighting the risk of “double-counting” mitigation and factual dissimilarities.
HM Advocate v TJ (2024 JC 1) — stressed that sentences upheld as merely “lenient” do not create sentencing starting-points. TJ also confirmed that location, persistence, and presence of a child are aggravating; those rationales partially informed the present court’s list of aggravations.
HM Advocate v RB (2025 SCCR 164) — clarified that severe psychological harm elevates cases to higher harm categories. Drawing analogy, the Court treated PTSD here as “severe.”

3.2 Legal Reasoning

The Appeal Court’s analytic path can be broken down into five steps:

Culpability Assessment. The respondent used physical force, pinned the complainer, ignored explicit non-consent, deployed multiple forms of sexual violation, and repeated vaginal rape. Each element cumulatively intensified culpability.
Harm Assessment. Contrary to the trial judge’s view, the Court held the evidence (extensive bruising, ongoing PTSD, six-month absence from work) inexorably led to a finding of severe psychological harm, not “low harm.”
Weight of Mitigation. While recognising the respondent’s hitherto exemplary army career, no prior convictions, and collateral career loss, the Court emphasised, by reference to the English guideline, that the graver the offence, the less significance attached to good character. Otherwise the system would reward those whose social capital facilitates offending.
Guideline Mis-application. The judge had relied on the Scottish Sentencing Council’s draft rape guideline (still unapproved) and the English Definitive Guideline, rating both culpability and harm at the lowest category. The Appeal Court stated this was an error because (a) draft guidelines have no force, and (b) even under the English matrix the facts clearly fit Category 2 (severe psychological harm).
Substitution of Sentence. Using its own evaluative discretion, the Court set a custodial term of 6.5 years. It did not specify a mathematical tariff, but the increase roughly aligns with moving from Category 3/low harm to Category 2/severe harm on the English grid, minus orthodox allowances for personal mitigation.

3.3 Impact of the Judgment

Sentencing Benchmarks. Trial judges now have clear authority that repeated rape within one episode, especially with oral and vaginal components and significant physical injury, warrants well in excess of 6 years even for a first offender of good character.
Harm Evidence. Victim statements and medical evidence establishing PTSD will almost certainly push a case to the “severe harm” bracket. Defence submissions focusing on a victim’s outward behaviour or post-assault ambiguity will rarely carry weight.
Personal Mitigation Ceiling. This decision caps the influence of career loss, armed-forces status, and positive character references – they cannot transform what would otherwise be a mid-to-high range sentence into a low-range sentence.
Guideline Usage. Scottish judges must not treat draft guidelines, or guidelines from other jurisdictions, as dispositive. They are permissible only as a comparative tool or cross-check.
Online-Dating Context. While declining to treat dating-app encounters as an aggravation per se, the Court’s obiter discussion signals forthcoming public-legal education obligations for platforms and users.

4 · Complex Concepts Simplified

Unduly Lenient Sentence (ULS): Not merely “too low” in the appellate court’s view, but outside any sentence a reasonable trial judge could impose after weighing all relevant factors.
Culpability vs. Harm: Culpability looks at the offender’s conduct and intent (planning, force, persistence). Harm concerns the impact on the victim (physical injury, psychological trauma).
Personal Mitigation: Factors personal to the offender—good character, career, family responsibilities— that may justify some leniency. In serious sexual crimes these factors carry limited weight.
Cross-Check: The practice of glancing at a different guideline or comparative sentence after arriving at a provisional sentence using Scottish principles, solely to ensure broad proportionality.
Post-Traumatic Stress Disorder (PTSD): A psychiatric disorder triggered by a traumatic event. Symptoms include flashbacks, avoidance behaviour, sleep disturbance and hyper-vigilance. Its medical diagnosis usually suffices to prove “severe psychological harm.”

5 · Conclusion

HM Advocate v MacGregor cements three doctrinal clarifications in Scottish sentencing for rape: (1) persistent, multi-faceted sexual violation is intrinsically more serious; (2) the judiciary must interrogate the quality of harm through victim impact statements and not rely on speculative inferences from a complainer’s behaviour; and (3) personal mitigation has a stringent ceiling in sexual violence cases.

By increasing the sentence from 4½ to 6½ years, the Appeal Court did more than correct a single sentencing error—it recalibrated the baseline for similar rapes, warned against mechanical transplantation of non-Scottish guidelines, and reinforced the primacy of victim autonomy and welfare. Future tribunals will almost inevitably cite MacGregor when confronting cases involving repeated rape, significant physical injury, and post-assault PTSD, thereby embedding the decision as a touchstone for proportional, victim-centred sentencing in Scotland.