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

Factual and Procedural Background

The Respondent, aged 64 at the time of sentencing, was convicted after trial of 17 charges, including sexual offences and assaults. The Crown appealed against the sentences imposed for 14 of these charges, excluding three assault charges for which the Respondent was admonished. The sexual offences involved multiple victims, including three younger cousins and the Respondent's wife, and spanned several years, with some offences committed when the victims were children or teenagers. The non-sexual offences involved assaults on the Respondent's wife, partner, and daughter over a period of approximately 20 years. The Respondent denied all sexual offending and accepted responsibility for only some of the physical assaults. He had a prior conviction for theft from 1979 but no other recent offending. At sentencing, the Respondent was noted to have ill-health conditions but had maintained stable employment and a long-term relationship in recent decades. The sentencing judge imposed an in cumulo sentence of 8 years for the sexual offences and a concurrent 3-year sentence for the assaults. The Crown appealed on the basis that the sentences were unduly lenient.

Legal Issues Presented

1. Whether the sentences imposed for the sexual offences and assaults were unduly lenient.
2. Whether the sentencing judge erred in making the sentence for the non-sexual offences concurrent with the sexual offences sentence.
3. What is the appropriate total sentence reflecting the totality principle given the nature and timing of the offences.

Arguments of the Parties

Appellant's Arguments

• The 8-year sentence for the sexual offences was unduly lenient given the serious nature of the offences, including penile penetration of children and repeated oral penetration over a period of about two years.
• The Respondent was in a position of trust as an older relative in relation to some victims.
• The victim statements indicated serious emotional and psychological harm.
• The rape of the Respondent's wife was aggravated by her pregnancy.
• The sentencing judge failed to follow the approach outlined in HM Advocate v Fergusson and erred in making the sentences for non-sexual offences concurrent, effectively allowing those offences to go unpunished.
• The 3-year sentence for assaults was unduly lenient given the sustained nature of domestic abuse, the use of weapons, and serious injuries inflicted.
• The judge's concurrent sentencing was contrary to the precedent set in McDade v HM Advocate.

Respondent's Arguments

• While sentences may have been lenient, they were not unduly so.
• The sexual offences were committed 40 or more years ago when the Respondent was very young, and the last offending ceased more than 20 years ago.
• The Respondent's life can be divided into three distinct phases: youth, maturity, and the present; he is now a different man with a stable relationship and responsible employment.
• The Respondent presents a low risk of reoffending and the sentencing judge had the advantage of hearing all evidence and making a holistic assessment.
• The judge was entitled to impose concurrent sentences, resulting in an effective total sentence of 8 years.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
HM Advocate v Collins 2017 JC 99	Position of trust aggravates sexual offences.	Referenced to highlight the seriousness of abusing vulnerable family members.
HM Advocate v Fergusson 2024 SLT 573	Approach to sentencing multiple offences and totality principle.	The sentencing judge was found to have erred by not following this approach; the court applied its principles to determine appropriate sentences.
McDade v HM Advocate 1997 SCCR 52	Concurrent sentences should not result in offences being effectively unpunished ("for free").	The court rejected the judge's decision to make sentences concurrent, emphasizing the need for additional punishment for non-sexual offences.
HM Advocate v AP [2024] HCJAC 31	Sentencing benchmark for sexual offences involving multiple charges and medium risk of reoffending.	The court distinguished the present case as more serious and requiring a longer sentence than the 8 years imposed in AP.
HM Advocate v RM 2024 JC 181	Sentencing for extended custodial term for sexual offences.	Referenced for comparison of sentence length for rape offences.
HM Advocate v CM [2024] HJAC 39	Sentencing for sexual offences involving multiple charges.	Used to benchmark an appropriate sentence length for rape charges.

Court's Reasoning and Analysis

The court analyzed the sentencing judge's approach and found that he did not apply the sentencing principles outlined in HM Advocate v Fergusson, which requires a structured assessment of sentences for multiple offences and the totality principle. The court disagreed with the judge’s rationale for making the non-sexual offence sentences concurrent, noting that these offences involved different victims and occurred over a later period. Consequently, the court held that the concurrent sentencing effectively allowed some offences to go unpunished, contrary to established legal principles.

In assessing appropriate sentences, the court distinguished the present case from HM Advocate v AP, noting the greater extent of sexual offending and the sustained violent offending. The court proposed an in cumulo sentence of 6 years for certain sexual offences involving younger victims, taking into account the seriousness, the youth of the Respondent at the time, and mitigating factors such as his current age, ill-health, and pro-social life. For other sexual offences involving rape and significant force, the court considered 8 years appropriate. For non-sexual assaults, a 4-year sentence was deemed suitable given the frequency, violence, and injuries inflicted over 20 years.

The cumulative total of 18 years was found excessive, and applying the totality principle, the court concluded that an in cumulo sentence of 12 years would be fair and proportionate.

Holding and Implications

The court ALLOWED THE APPEAL, quashed the sentences imposed by the sentencing judge, and substituted an in cumulo sentence of 12 years' imprisonment, backdated to 21 May 2024.

The decision results in a significantly increased custodial sentence reflecting the gravity and extent of the Respondent’s offending. The ruling clarifies the application of the totality principle and the necessity of imposing appropriate punishment for all offences, especially where multiple victims and sustained offending are involved. No new precedent was established beyond the application and reinforcement of existing sentencing principles.