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

Factual and Procedural Background

The Respondent was convicted of four charges of rape. On 27 May 2024, the trial judge sentenced the Respondent to an in cumulo sentence of 6 years' imprisonment. The Crown appealed against the sentence under sections 108(1)(a) and 108(2)(b) of the Criminal Procedure (Scotland) Act 1995, contending that the sentence was unduly lenient.

The offences involved two former partners of the Respondent. Charges 1 and 2 concerned rapes of the first partner, each involving a single occasion of penile penetration despite the partner's negative response. Charges 4 and 5 concerned multiple rapes of the second partner over two distinct periods, including aggravated offences under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 due to the victim's particular vulnerability during pregnancy and postpartum.

The Respondent asserted that all sexual relations were consensual. At the time of the offences, the Respondent was aged 19 for the first partner's offences and 23-24 for the second partner's offences. At sentencing, the Respondent was 27 years old.

A criminal justice social work report described the Respondent's pro-social background, including family support, no prior convictions, and moderate risk of reoffending. A victim statement from the first complainer described significant psychological harm resulting from the offences. No victim statement was provided from the second complainer.

The trial judge acknowledged the seriousness of the offences and psychological harm caused, considered the statutory aggravations, and took into account the Respondent's youth at the time of offending, pro-social background, and prospects for rehabilitation. However, the judge later recognized the sentence was lenient but left the question of undue leniency to the appeal court.

Legal Issues Presented

1. Whether the sentence of 6 years' imprisonment imposed by the trial judge was unduly lenient.
2. Whether the trial judge correctly applied the statutory aggravations under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016, including compliance with the requirement to state the extent and reasons for any difference in sentence attributable to those aggravations.
3. Whether the trial judge correctly applied sentencing principles, including the approach to aggregating sentences (in cumulo) and the relevance of the Respondent's age and maturity at the time of offending.

Arguments of the Parties

Appellant's Arguments

• The trial judge gave insufficient weight to the seriousness of the Respondent's conduct and the significant harm caused to the first complainer.
• The large number of rapes against the second complainer and the vulnerability of the victim during pregnancy and postpartum were inadequately considered.
• The judge failed to apply the sentencing guidance from HM Advocate v Fergusson, specifically by not identifying appropriate individual sentences before aggregating them into an in cumulo sentence, which would have resulted in a higher sentence.
• The judge did not properly apply the statutory requirements of the 2016 Act aggravations, failing to state the extent and reasons for any difference in sentence attributable to those aggravations, contrary to section 1(5)(d) of that Act.
• Comparisons with recent cases involving multiple complainers and similar offences supported the view that the sentence was unduly lenient, including references to sentences ranging from 8 to 10 years.
• A comparison with the Sentencing Council for England and Wales rape guideline suggested a starting point of 8 years per charge, indicating the aggregate sentence should be higher than 6 years.

Respondent's Arguments

• While the sentence might be considered lenient, it was not unduly so and fell within the range of sentences reasonably open to the trial judge, applying all relevant factors.
• The Respondent was young at the time of the first offences and in his first relationship, which the judge properly considered as mitigating factors.
• The judge had appropriate regard to all aggravating and mitigating circumstances, and even if the sentence was unduly lenient, it was not a case warranting the appellate court to impose a more severe sentence.

Table of Precedents Cited

Court's Reasoning and Analysis

The court applied the test for undue leniency established in HM Advocate v Bell, assessing whether the sentence imposed was outside the range that the trial judge could reasonably have considered appropriate. The court noted the trial judge did not have the benefit of the recent Fergusson decision and failed to specify appropriate sentences for individual charges before aggregating them.

The court found the trial judge did not comply with the statutory requirement under section 1(5)(d) of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 to state the extent and reasons for any difference in sentence attributable to aggravations.

The Respondent's age at sentencing excluded the application of the Sentencing Young People guideline, but his age and maturity at the time of offending remained relevant to culpability and rehabilitation considerations.

The court conducted a detailed assessment of appropriate sentences for the two sets of charges: 5 years in cumulo for charges 1 and 2, reflecting serious harm balanced against youth and immaturity; and 7 years 6 months in cumulo for charges 4 and 5, reflecting persistent offending with aggravations. The total aggregate sentence would be 12 years 6 months, but applying the totality principle, a fair and proportionate sentence would be significantly less, around 9 years.

The court compared the case with recent precedent cases involving multiple complainers and serious sexual offences, concluding that a 9-year sentence was appropriate, including 7 months attributable to the statutory aggravations.

The court gave less weight to the English Sentencing Council rape guideline cross-check, preferring the domestic precedents and its own sentencing experience.

Holding and Implications

The court ALLOWED THE APPEAL, quashed the original in cumulo sentence of 6 years' imprisonment, and substituted an in cumulo sentence of 9 years' imprisonment, with 7 months attributable to the aggravations under the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The substituted sentence was ordered to run from 24 April 2024.

The decision directly affects the Respondent by increasing the custodial sentence to reflect the gravity of the offences and statutory aggravations. No new legal precedent was established beyond the application of existing principles and precedents to the facts of this case.