Crown appeal against sentence by HMA against Calum Donald Dennis MacGregor (High Court of Justiciary)

Factual and Procedural Background

This opinion concerns a Crown appeal against the sentence imposed on the Respondent following his conviction for rape and sexual assault by penetration. The Respondent was sentenced to 4 years and 6 months imprisonment on 27 February 2025. The Crown contended that the sentencing judge failed to properly assess the gravity of the offence and gave undue weight to personal mitigation, resulting in an unduly lenient sentence.

The offence occurred on 14 December 2021 at the complainer's home in Edinburgh. The Respondent met the complainer through an online dating platform and accompanied her home after a restaurant meeting. The complainer consented only to kissing; the Respondent forcibly restrained and sexually assaulted her, including multiple acts of vaginal penetration, oral rape, and causing significant injury. The complainer resisted and protested throughout but was overpowered. Following the offence, the complainer suffered severe psychological harm, including PTSD and inability to work for six months.

The Respondent denied the charges, claiming the acts were consensual, but the jury rejected his account. The sentencing judge applied sentencing guidelines and took into account significant personal mitigation related to the Respondent’s background, including his military career and good character. The Crown appealed the sentence as unduly lenient.

Legal Issues Presented

1. Whether the sentencing judge erred in assessing the culpability and harm caused by the Respondent’s offence, resulting in an unduly lenient sentence.
2. Whether the sentencing judge gave undue weight to personal mitigation, including the Respondent’s good character and loss of military career, in reducing the sentence.
3. The appropriate application of sentencing guidelines, including the draft Scottish Sentencing Council guideline for rape and the Sentencing Council for England and Wales guideline.
4. The extent to which the context of online dating impacts the sentencing of sexual offences.

Arguments of the Parties

Appellant's Arguments

• The trial judge underestimated the culpability and harm, failing to recognize the forceful restraint, repeated sexual assaults, and significant injuries inflicted by the Respondent.
• The judge gave undue weight to personal mitigation, including the Respondent’s military background and good character, which should carry limited weight given the seriousness of the offence.
• The judge erred in assessing harm at the lower end of the scale and wrongly suggested the incident was not traumatic for the complainer, contrary to evidence of severe psychological harm and impact on her life.
• Reliance on the precedent case involving a doctor was misplaced due to differing circumstances; a longer sentence was required to reflect societal denunciation of such offences, particularly given the prevalence of online dating.

Respondent's Arguments

• The sentence, while lenient, was within the acceptable range and did not fall below it.
• If the judge erred by considering the complainer's pre- and post-offence actions as mitigating, this was not a basis for overturning the sentence.
• The judge was entitled to consider the particularly punitive effect of imprisonment on the Respondent, given his pro-social background and military career.
• The context of online dating should not increase the sentence, as culpability for rape does not differ based on how the parties met.
• The sentence met the objectives of punishment, deterrence, and rehabilitation and should be upheld.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by reaffirming the established test for undue leniency, emphasizing that an appeal court should only interfere if the sentence falls outside the reasonable range that the sentencing judge could have considered appropriate. The court noted significant personal mitigation but stressed that the weight of such mitigation is limited in serious sexual offences.

The sentencing judge’s reliance on draft guidelines and English sentencing guidelines was found to be misplaced and misapplied, particularly in assessing harm at the lowest level. The court highlighted multiple aggravating factors that the sentencing judge had insufficiently considered, including the offence occurring in the complainer’s home, the Respondent’s persistence despite resistance, the use of force, significant injury caused, multiple forms of sexual assault including oral rape, and the repetition of vaginal rape. The court also noted the Respondent’s physical advantage as an army officer, which compounded the seriousness.

The court rejected the sentencing judge’s view that the complainer’s actions before and after the offence indicated a lower level of harm or trauma. Instead, the court accepted the victim statement and witness evidence demonstrating severe psychological harm, including PTSD and long-term effects. The court distinguished precedent cases relied upon by the sentencing judge, emphasizing differences in circumstances and cautioning against using lenient sentences as benchmarks.

While the court recognized the Respondent’s personal mitigation, it concluded that the original sentence did not adequately reflect the gravity of the offence and the harm caused. The court increased the sentence to 6 years and 6 months imprisonment, backdated to 30 January 2025.

Regarding the context of online dating, the court clarified that the mere fact of meeting through such platforms does not justify a higher sentence. However, the court underscored the importance of clearly communicating the law on consent, emphasizing that consent must be freely given, can be withdrawn at any time, and that sexual activity without consent constitutes a serious crime.

Holding and Implications

The court ALLOWED THE CROWN APPEAL and imposed a new sentence of 6 years and 6 months imprisonment, backdated to 30 January 2025.

The direct effect is that the Respondent’s custodial sentence is increased to better reflect the severity and circumstances of the offence and the harm caused to the complainer. No new legal precedent was established beyond reaffirming established principles on undue leniency, the limited weight of personal mitigation in serious sexual offences, and the proper assessment of harm. The court’s remarks on consent in the context of online dating serve as a reminder of the law’s protection of sexual autonomy but do not alter substantive legal standards.