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

Factual and Procedural Background

On 14 June 2024 at The City High Court, the Respondent was found guilty of two sexual offences against his children. The first charge involved causing his son, referred to as Child A, to participate in sexual activity between April 2011 and April 2013, when Child A was between 4 and 5 years old. The second charge involved the rape of his daughter, referred to as Child B, on an occasion between November 2019 and March 2020, when Child B was 10 years old.

The Respondent was sentenced to 12 months' imprisonment for the first charge and 6 years' imprisonment for the second charge, to be served consecutively. The Crown appealed the sentence on the grounds that it was unduly lenient.

Child A gave evidence via a pre-recorded commission at age 16, describing an incident where the Respondent exposed himself and instructed Child A to bend over during a walk. Child A was fearful and believed the Respondent might harm him.

Child B also gave evidence by pre-recorded commission at age 14. The Respondent had regular contact with Child B, who often stayed overnight at his residence. On one occasion, the Respondent forcibly raped Child B in his bedroom, despite her resistance and attempts to escape. After the offence, the Respondent locked the doors preventing escape, later escorted Child B home, and reported the incident to her mother, ceasing further contact.

The Criminal Justice Social Work Report noted the Respondent's denial of the offences, assessed a high risk of sexual reoffending, and highlighted a significant lack of insight into the seriousness of his conduct.

A Victim Statement, submitted by Child B's mother approximately three years after the offence, described ongoing psychological effects including fear, mood swings, and nightmares, with recent improvements in social activity.

The trial judge acknowledged the breach of trust involved in offending against children in his care, assessed the harm to Child A as limited, and the harm to Child B as involving some psychological trauma. The judge considered aggravating factors such as the young ages of the victims and the Respondent's prior convictions. However, the judge rejected the Crown's submission that the psychological harm to Child B was significant or severe, considering the evidence insufficient to support that characterization.

The judge noted sentencing guidelines from England and Wales and draft Scottish guidelines, observing that the English range for the offence against Child B would be 8 to 13 years, while the Scottish draft suggested 6 to 9 years. The judge also considered that the offence against Child A alone might not have warranted prosecution in the High Court or a custodial sentence.

Legal Issues Presented

1. Whether the sentence imposed for the sexual offences against the Respondent's children was unduly lenient.
2. What is the appropriate sentencing range for the rape of a child under 13 in the context of breach of trust by a parent.
3. Whether the trial judge erred in assessing the psychological harm suffered by the victim as not significant or severe.
4. Whether an extended sentence should be imposed given the nature and circumstances of the offences.

Arguments of the Parties

Appellant's Arguments

• The Respondent was in a position of trust toward Child B, warranting a sentencing range of 8 to 10 years’ imprisonment as per court guidance in Collins v HM Advocate (2017 JC 99).
• The offence against Child B was aggravated by her young age, the sudden and forceful nature of the attack, her attempts to escape, and the psychological harm caused.
• The trial judge erred in finding the psychological harm not severe or significant, contrary to principles established in R v Chall and others ([2019] 4 WLR 102), as the Victim Statement indicated long-term and severe consequences.
• Sentences for rape of a young child should be higher than for rape under section 1 of the 2009 Act, reflecting increased harm and culpability.
• The disparity between English guidelines and the sentence imposed confirmed undue leniency, supported by precedents including HM Advocate v AB (2016 SCCR 47) and HM Advocate v Docherty ([2024] HCJAC 36).

Respondent's Arguments

• The sentence was within a reasonable range for the offence; the breach of trust did not necessitate an 8-10 year starting point.
• The Criminal Justice Social Work Report did not justify an extended sentence.
• Cross-checking against English sentencing guidelines requires caution due to differing sentencing practices.
• The trial judge appropriately considered all aggravating factors, including the victims’ ages, breach of trust, use of force, and inability of Child B to escape.
• The trial judge’s assessment of psychological harm was based on evidence and Victim Statement and was a conclusion he was entitled to reach.

Table of Precedents Cited

Court's Reasoning and Analysis

The court critically examined the trial judge’s assessment of the offences and sentences. It disagreed with the trial judge’s view that the offence against Child A was minor and could have been prosecuted summarily, emphasizing the serious breach of trust and the child’s evident fear.

Regarding the rape of Child B, the court highlighted the gravity of the offence, the breach of the fundamental trust between parent and child, the use of force, and the locking of doors to prevent escape. The court found the trial judge underestimated the significance of these aggravating factors.

The court rejected the trial judge’s conclusion that the psychological harm was not significant, noting that reasonable severe psychological harm with potential long-term consequences was obvious given the victim’s age and the nature of the offence. The Victim Statement, though lay in nature, sufficiently demonstrated such harm.

The court determined that the trial judge erred in categorizing the offence within the lesser sentencing category (A3) when it clearly fell within a more serious category (A2) according to cross-checks with English and draft Scottish guidelines.

The court referred to sentencing principles articulated in Collins v HM Advocate, reinforcing that headline sentences for rape involving breach of trust and young victims generally range from 8 to 10 years, with potential for higher sentences depending on specific aggravating circumstances.

Considering the offences separately, the court found an appropriate sentence for the offence against Child A to be 2 years’ imprisonment and for the offence against Child B to be 10 years’ imprisonment. A consecutive sentence was appropriate due to the distinct timing of offences.

Applying the totality principle, the court reduced the cumulative sentence to 11 years but imposed an extended sentence due to the repetition of offending and risk factors, substituting the original sentence with a 14-year extended sentence comprising 11 years custody and 3 years extension.

Holding and Implications

The court QUASHED the original sentence imposed by the trial judge and substituted it with a 14-year extended sentence, consisting of an 11-year custodial term and a 3-year extension period.

This decision directly affects the Respondent by significantly increasing the length and nature of the sentence to reflect the seriousness of the offences, breach of trust, and psychological harm caused. No new legal precedent was established; rather, the court reaffirmed and applied existing sentencing principles and guidelines.