Sentencing Hierarchy Confirmed: Rape of a Young Child Merits Significantly Higher Penalties – Commentary on H.M. Advocate v. McMahon & Lambert [2025] HCJAC 34

1. Introduction

The Scottish High Court of Justiciary (Appeal Court) in H.M. Advocate v. McMahon and Lambert delivered a landmark ruling that recalibrates Scottish sentencing practice for sexual offences against children under thirteen. The Crown challenged two sentences—one after trial (McMahon) and one after a guilty plea (Lambert)—as unduly lenient. In allowing both appeals, the Court:

Substantially increased each respondent’s sentence and imposed extended sentences under section 210A of the Criminal Procedure (Scotland) Act 1995;
Clarified that rape of a young child (section 18, Sexual Offences (Scotland) Act 2009) is, as a general rule, more serious than rape of an older person under section 1;
Explained proper assessment of harm and culpability, including grooming, vulnerability, and psychological impact;
Resolved procedural uncertainties concerning (i) the competence of extended sentences below four years, and (ii) whether avoidance of cross-examination can earn a “discount” akin to a guilty plea.

2. Summary of the Judgment

McMahon (aged 67 at offence): original extended sentence 7 years (5Y custody + 2Y extension) was replaced by an extended sentence of 13 years (11Y custody + 2Y extension).
Lambert (aged 21 at offence): sentence of 3Y4M was quashed and replaced with an extended sentence of 8Y3M (5Y3M custody + 3Y extension), reflecting a 25 % discount for a plea intimated 4½ months after petition.

Beyond individual disposals, the Court formally endorsed the principle (para [75]) that, “in the absence of exceptional circumstances, the appropriate sentence for rape of a child under section 18 will be significantly higher than for rape under section 1.” The Court also:

Restated the Bell test for Crown appeals against sentence (whether the original sentence falls outside the range reasonably open to the judge);
Held that extended sentences are competent for any sexual offence irrespective of length (s 210A(1)(a)(i));
Rejected the Hutchinson approach to “utilitarian benefits”, confirming that only a guilty plea attracts the statutory discount mechanism (McNamara followed);
Provided practical guidance on guilty-plea discounts, emphasising early intimation under Gemmell.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

A v. HMA [2015] HCJAC 105; Rae v. HMA [2021]; HMA v. Collins [2016]; HMA v. RB [2025]—used to demonstrate an emerging body of authority treating sexual offences against young children as warranting higher tariffs.
HMA v. Bell (1995)—set the unduly-lenient test the Appeal Court must apply in Crown sentence appeals.
HM Adv v. AB [2015]—distinguished because it involved a single oral rape of a 14-year-old and no evidence of lasting harm.
Hutchinson (2007) v. McNamara [2012]—conflict resolved in favour of McNamara: no formal “section 196-style” deduction for merely sparing a witness cross-examination.
LM [2025]—Court’s own recent articulation of seven grooming hallmarks, applied to McMahon.
English authorities: AG’s Refs 11 & 12/2012; Sentencing Council Guidelines (Rape of Child <13) served as cross-checks for proportionality.

3.2 The Court’s Legal Reasoning

a) Culpability and Harm Framework
Applying the Scottish Sentencing Council’s Principles and Purposes and Sentencing Process guidelines, the Court emphasised:

Culpability increases with grooming, significant age disparity, abuse of trust, use of force (e.g., choking), and victim-blaming.
Harm must be assessed objectively and broadly—actual, intended or foreseeable—without requiring the offender’s foresight (para [57]).

b) Grooming and Vulnerability
For McMahon, the Court found each of LM’s seven grooming hallmarks satisfied: relationship cultivation, isolation, emotional manipulation, secrecy, threat, escalation, and exploitation of special interests (the child’s love of dogs). For Lambert, although no prolonged grooming, there was deliberate deception (Snapchat contact, misstatement of age, taking virginity motive) and exploitation of a 12-year-old in distress late at night.

c) Extended Sentences
The Court corrected the misconception that a 4-year threshold applies to sexual offences. Under s 210A(1)(a)(i), any sexual offence may attract an extended sentence where public-protection criteria are met. Both appellants’ risk assessments and offence seriousness justified extension periods of two and three years, respectively.

d) Discounts for Guilty Pleas & “Utilitarian Benefits”
Only a guilty plea engages the statutory discount in s 196. Avoidance of cross-examination or agreement of evidence can still be weighed as mitigation but does not trigger the formal statement-of-discount exercise.

e) Confirmation of a Sentencing Hierarchy
Section 18 rapes now presumptively attract “significantly higher” sentences than section 1 rapes, aligning Scottish practice with English starting points while accommodating Scottish release provisions and the non-prescriptive approach of Scottish guidelines.

3.3 Potential Impact

Judicial Practice: Sheriffs and High Court judges must start from materially higher tariffs for s 18. Sentencers can no longer treat section 1 and section 18 parity of maximum penalty (both life) as implying neutral starting points.
Crown Appeals: The judgment signals a willingness to intervene robustly where grooming, vulnerability and psychological harm are understated.
Defence Strategy: Emphasises the value of very early pleas; challenges hopes of “utilitarian” discounts for witness-sparing absent a plea.
Legislative & Guideline Development: Bolsters the case for a formal Scottish guideline on sexual offences against children; drafts must avoid the pitfalls identified (trial judges using draft guidelines as if final).
Child-Protection Agencies: The recognition of grooming hallmarks can be cited in civil risk-management contexts.

4. Complex Concepts Simplified

Section 18 vs. Section 1 Rape – Section 18 covers victims <13; consent is legally impossible, so the Crown need not prove absence of consent or reasonable belief.
Extended Sentence – A hybrid disposal: court sets a custodial term plus an extension (on licence) during which breach risks recall. Designed for public protection when risk of serious harm is ongoing.
“Headline” Sentence – The notional sentence before applying any plea discount.
Grooming – A course of conduct whereby an offender prepares a child for abuse through trust-building, gifts, secrecy, or threats.
Unduly Lenient Appeal – Under the Bell test a sentence is quashed only if it lies outside the reasonable range, not merely because the Appeal Court would have passed a different sentence.
Victim Statement – A statutory mechanism (Criminal Justice (Scotland) Act 2003 s 14) allowing victims or specified relatives to narrate impact; judges must consider it though it is not “evidence” in the adversarial sense.

5. Conclusion

The Appeal Court’s opinion in H.M. Advocate v. McMahon & Lambert decisively elevates the sentencing starting point for rape of children under thirteen, solidifying a hierarchy of seriousness within sexual offences. The Court’s multi-faceted reasoning—grounded in harm, culpability, victim vulnerability, and public protection—provides a template for future sentencing and for assessing unduly-lenient appeals. It clarifies procedural uncertainties about extended sentences and discounts, re-states the importance of early pleas, and embeds grooming analysis into Scottish jurisprudence. Going forward, advocates, judges, policymakers and support services must all reckon with the judgment’s clear message: sexual exploitation of young children will attract, and should attract, markedly severe penal consequences.