Crown Appeal Against Sentence by HMA against AP (High Court of Justiciary)

Factual and Procedural Background

The Appellant, His Majesty's Advocate, appealed against the sentence imposed on the Respondent following convictions on three charges: one of sexual assault and two of rape. The offences occurred between February 2020 and April 2021, involving three different complainers, all of whom had prior or ongoing relationships with the Respondent. The Respondent was originally indicted on 14 charges, but only five proceeded to trial, with some charges resulting in verdicts of not proven and others withdrawn by the Crown. The sentencing judge imposed a cumulo sentence of five years' imprisonment, backdated to December 2023, alongside a ten-year non-harassment order for each complainer and indefinite notification requirements under the Sexual Offences Act 2003. The Crown appealed on the basis that the sentence was unduly lenient.

Legal Issues Presented

1. Whether the sentencing judge correctly assessed the significance of statutory aggravations under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
2. Whether the sentencing judge applied the correct approach in imposing a cumulo sentence for multiple offences.
3. Whether the overall seriousness of the offending was properly assessed.
4. Whether mitigating factors were appropriately considered.
5. Whether the assessment of risk and criteria for imposing an extended sentence were correctly applied.

Arguments of the Parties

Appellant's Arguments

• The sentencing judge erred by treating the domestic context of the offences as mitigating rather than aggravating, contrary to established case law.
• The judge failed to properly apply the statutory requirement to explicitly state the effect of aggravations on sentencing.
• The seriousness of the offences was understated, with the judge minimizing the harm caused and the gravity of the offending conduct.
• The judge incorrectly identified mitigating factors, particularly overemphasizing the Respondent's self-reported mental health issues without sufficient medical evidence.
• The judge failed to properly apply the principles for cumulo sentencing, including explaining the sentence that would have been imposed for each offence alone.
• An extended sentence was warranted given the risk of reoffending and the nature of the offences, but the judge erroneously concluded otherwise.

Respondent's Arguments

• The circumstances of the offences were distinct from cases involving prolonged abusive behaviour and escalating severity.
• The custodial sentence of five years was fair, proportionate, and not unduly lenient.
• The sentencing judge properly considered all relevant factors, including aggravations, and imposed non-harassment orders accordingly.
• The judge provided clear and reasonable sentencing reasons and had the advantage of hearing all evidence firsthand.
• Guidelines from England and Wales were not directly applicable or helpful.
• An extended sentence was not appropriate given the circumstances.

Table of Precedents Cited

Court's Reasoning and Analysis

The court found that the sentencing judge had underestimated the seriousness of the offences, particularly by minimizing the impact of the statutory aggravations under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The judge treated the domestic context as mitigating or failed to properly take it into account as an aggravating factor, contrary to established case law and statutory requirements. The judge’s narrative of the offences omitted or downplayed critical facts, such as the victims’ withdrawal of consent and the Respondent’s disregard of their refusals, which increased the gravity of the offences.

Further, the sentencing judge failed to comply with procedural requirements for cumulo sentencing by not explaining the sentence that would have been appropriate for each offence alone and the rationale for the aggregate sentence chosen. The court emphasized that the offences constituted a course of conduct showing escalating severity, which warranted a more substantial sentence than imposed.

Although the Respondent’s mental health and adverse childhood experiences were relevant, these did not amount to mitigating factors sufficient to reduce the sentence. The court rejected the trial judge’s conclusion that an extended sentence was not available, but ultimately found that the criteria for imposing one were not met on the facts, given the Respondent’s denial and current obstacles to engagement in intervention.

Holding and Implications

The court ALLOWED THE APPEAL, quashed the original sentence, and substituted a cumulo sentence of eight years' imprisonment.

This decision directly affects the Respondent by increasing the custodial term to better reflect the seriousness of the offences and statutory aggravations. No new precedent was established beyond the reaffirmation and application of existing sentencing principles relating to statutory aggravations, cumulo sentencing, and assessment of extended sentence criteria.