Factual and Procedural Background
This opinion concerns two Crown appeals against sentences imposed for the crime of rape of a young child under section 18 of the Sexual Offences (Scotland) Act 2009. The Crown contends that the sentences imposed were unduly lenient and requests the court to increase them. The first respondent was found guilty of two charges of rape of a young child, aged 12, who had moderate learning disabilities and a developmental age significantly younger than her chronological age. The offences involved breaches of trust, grooming, and use of force. The second respondent pled guilty to a single charge of rape of a young child, aged 12, with the offence involving deception, premeditation, and choking. Both cases were sentenced in the High Court of Justiciary, and the Crown appeals focus on the appropriate level of sentence and whether extended sentences should have been imposed.
Legal Issues Presented
- Whether the sentences imposed for rape of a young child under section 18 of the Sexual Offences (Scotland) Act 2009 were unduly lenient.
- Whether the crime of rape of a young child generally merits a higher sentence than rape under section 1 of the same Act.
- Whether the sentencing judges properly assessed the culpability and harm in each case, including factors such as grooming, breach of trust, use of force, and psychological harm.
- Whether extended sentences were competent and appropriate in the circumstances of each case.
- The extent to which mitigating factors, including guilty pleas and the avoidance of cross-examination, should influence sentence reduction.
Arguments of the Parties
Appellant's Arguments (The Crown)
- The crime of rape of a young child is more serious than rape under section 1 and merits higher sentences, reflecting increased harm and culpability.
- The sentencing judges erred in their assessment of culpability and harm by omitting significant aggravating factors such as grooming, breach of trust, use of force, threats, and the vulnerability of the victims.
- In the first case, the judge wrongly characterized the offending as opportunistic when it was a course of grooming and exploitation over time.
- The harm caused was significantly underestimated, ignoring victim statements demonstrating profound psychological and social consequences.
- The judge in the second case erred in finding no premeditation, failing to recognize the use of deception and choking as aggravating factors, and misapplying the law regarding extended sentences.
- English sentencing guidelines provide useful cross-checks, indicating higher sentencing ranges appropriate for the offences.
- The avoidance of cross-examination and agreement of facts, while having utilitarian value, should not lead to formal sentence reductions akin to those for guilty pleas.
Respondents' Arguments
- Both respondents accepted that the sentences were lenient but urged the court to impose sentences no longer than necessary.
- In the first case, the respondent denied offending and blamed the victim, but mitigation was limited.
- In the second case, the respondent highlighted his young age (21), lack of previous convictions, guilty plea, and expressed remorse.
- The second respondent argued there was no grooming, premeditation, or breach of trust, and the choking was consensual.
- The respondent contended the judge properly applied sentencing principles, including mitigating factors such as age and rehabilitation prospects.
- The second respondent disputed the general proposition that rape under section 18 is inherently more serious than under section 1, citing lack of direct Scottish precedent supporting significantly higher sentences.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HM Advocate v Bell (1995) SCCR 244 |
Test for Crown appeal against sentence: sentence must be unduly lenient, falling outside reasonable range. |
Reiterated the standard for interfering with sentences on appeal, emphasizing deference to trial judge's assessment. |
| HM Advocate v AB [2015] HCJAC 106, 2016 SCCR 47 |
Sentencing precedent for oral rape of a 14-year-old girl; used as a comparative yardstick. |
Found inappropriate to apply as a yardstick in first case due to more serious harm and multiple offences. |
| HM Advocate v LM [2025] HCJAC 3, 2025 SLT 385 |
Identification of grooming hallmarks and sentencing for sexual offences involving trust and repeated conduct. |
Used to establish grooming factors aggravating culpability in first case. |
| HM Advocate v McNamara [2012] HCJAC 54, 2013 JC 53 |
Clarification that reductions under s 196 for guilty pleas only apply to pleas of guilty, not other utilitarian benefits. |
Applied to reject formal sentence reduction for avoidance of cross-examination in first case. |
| Hunter v Brown [2012] HCJAC 42, 2012 SLT 665; HM Advocate v B [2012] HCJAC 13, 2012 JC 283 |
Professional duty to agree facts by joint minute and its benefits in trial efficiency. |
Referenced to support the responsible conduct of counsel in agreeing evidence and avoiding cross-examination. |
| Kirkup v HM Advocate [2025] HCJAC 9, 2025 JC 135 |
Aggravating nature of choking in sexual offences and its potential to cause serious harm. |
Applied in second case to emphasize aggravation from choking and respondent’s sexual arousal to it. |
| R v Saunders [2022] EWCA Crim 264 |
Objective assessment of harm including actual, intended, or foreseeable harm. |
Used to reject sentencing judge's approach of assessing harm based on what offender ought to have foreseen. |
| HM Advocate v Docherty [2024] HCJAC 36, 2025 JC 31 |
Use of English Sentencing Guidelines as cross-check in sexual offence sentencing. |
Supported the conclusion that higher sentences were appropriate in second case. |
| Gemmell v HM Advocate [2011] HCJAC 129, 2012 JC 223 |
Principles governing reduction in sentence for guilty pleas based on timing and utilitarian value. |
Applied to assess appropriate discount for guilty plea in second case. |
| Geddes v HM Advocate [2015] HCJAC 43, 2015 SCCR 230 |
Clarification that no automatic one-third reduction for guilty pleas under s 76. |
Referenced in relation to plea discount in second case. |
| HM Advocate v McGowan 2005 1 JC 327 |
Judicial responsibility to determine risk and appropriateness of extended sentences. |
Affirmed that judges must impose extended sentences when statutory criteria are met, regardless of social work recommendations. |
| HM Advocate v TJ [2023] HCJAC 23, 2024 JC 1 |
Sentencing principles emphasizing uniqueness of each case and importance of individual factors in assessing culpability and harm. |
Used to caution against mechanistic application of precedents and guidelines. |
Court's Reasoning and Analysis
The court undertook a detailed analysis of both cases, applying established legal principles and sentencing guidelines. It emphasized that sentences must fall within a reasonable range considering all relevant factors and that the sentencing judge’s discretion is entitled to respect unless the sentence is unduly lenient.
In the first case, the court found that the sentencing judge materially erred by failing to recognize the grooming over years, the exploitation of an extremely vulnerable child with a developmental age of under five years, the repetition of offences, the use of force, and threats to maintain secrecy. The judge also misapplied sentencing guidelines by treating the offending as opportunistic and by underestimating harm, ignoring victim impact statements detailing severe psychological and social consequences. The respondent’s denial and victim blaming further aggravated culpability. The court concluded that an extended sentence of 13 years with 11 years custodial term was appropriate.
In the second case, the court found the judge erred in failing to recognize premeditation, the use of deception, and the aggravated nature of choking, which was sexually arousing to the respondent. The judge misapplied the law by holding extended sentences were incompetent for sentences under four years, which is incorrect for sexual offences. The court also found the judge’s harm assessment flawed by focusing on what the respondent ought to have foreseen rather than the actual harm caused. Despite the respondent’s youth and guilty plea, the court found the sentence unduly lenient and imposed an extended sentence of 8 years and 3 months with 5 years and 3 months custodial term and a 3-year extension, allowing a quarter reduction for the guilty plea.
The court recognized the value of English sentencing guidelines as a cross-check but stressed that Scottish sentencing principles and the unique circumstances of each case must guide the final decision. It reiterated that utilitarian benefits such as avoidance of cross-examination do not warrant formal sentence reductions akin to those for guilty pleas.
Regarding the relative gravity of rape under section 18 compared to section 1, the court accepted the general principle that rape of a young child is more serious, involving higher culpability and harm, meriting higher sentences, while acknowledging that exceptional circumstances may vary.
Holding and Implications
The court ALLOWED THE CROWN APPEALS and imposed increased sentences in both cases.
In the first case, the court substituted the original sentence with an extended sentence of 13 years, comprising an 11-year custodial term and a 2-year extension period, backdated to 22 August 2023.
In the second case, the court imposed an extended sentence of 8 years and 3 months, with a custodial term of 5 years and 3 months and a 3-year extension period, backdated to 10 January 2025.
The decisions underscore the court's commitment to ensuring sentences for rape of young children reflect the serious nature of the offences, the vulnerability of victims, and the need for public protection. The court clarified that extended sentences are competent for sexual offences regardless of custodial term length and emphasized careful, individualized sentencing assessments. No new legal principles were established beyond affirming existing sentencing standards and the proper application of sentencing guidelines and statutory provisions.