APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
OPINION OF THE COURT
THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST SENTENCE
BRIAN THOMPSON MOFFAT
HER MAJESTY'S ADVOCATE
Appellant: Wheatley, Solicitor Advocate; Fairbairns
Respondent: Menzies, Q.C. A.D.
25 June 1999
The appellant is Brian Thompson Moffat who was convicted at the High Court at Edinburgh of a charge of attempted rape. At the time of the offence the appellant was aged 31, while the complainer was a girl of 15. The judge imposed a sentence of six years imprisonment and it is against that sentence that the appellant has appealed.
On the night in question the complainer was staying overnight in the house of her grandfather. The appellant is the son of the grandfather's second wife and he called at the house on the evening of 4 July 1997. After spending a few hours, he left at about nine o'clock. He had some conversation with the complainer whom he had not seen for a considerable time, probably for about five years. At that stage there was no expression of sexual interest, but it appeared from what the appellant said in evidence that he in fact felt attracted by the complainer. The appellant was living elsewhere and was not expected to return that night to the house.
But he did return at about 2.30 in the morning and got into the house through a kitchen window which he forced. He went into the spare bedroom where the complainer was asleep and put his arm around her waist. She was terrified and jumped out of bed but the appellant pulled her back into bed, got on top of her, held her down and tried to kiss her. He handled her breasts and private parts and tried to pull down her pants. The complainer fought back, scratching and kicking. The appellant said he wanted to have sex and continued his efforts to do so after the complainer said "no way". His penis touched her legs. She kept pushing him off and eventually the appellant, who was very drunk, ceased his attempts and fell asleep. The complainer was very frightened and was shaking. When seen the next day by a friend to whom she confided what had happened, she was extremely distressed, tearful and very nervous. Although previously of a lively and confident personality she is now very withdrawn and unsure of herself.
The trial judge summarises the position by saying that this was a case of attempted rape of a girl of 15 by a man some 16 years her senior. It was a frightening and very distressing experience for her and, although there was no physical harm, there have been persisting consequences for her mental and emotional state. He adds in his report there were no mitigating circumstances and that he considered a sentence of six years imprisonment to be appropriate.
While this appeal has been waiting for a hearing, certain investigations have been carried out into the appellant's mental condition, but this morning Mr Wheatley indicated that he was content to proceed simply on the basis that the sentence imposed had in the circumstances been excessive. He asked us however to note that the psychiatric reports which had been obtained did indicate that at the time of the offence the appellant would have been suffering from schizophrenia. He pointed out, correctly, that there were no psychiatric reports available to the trial judge who was therefore not aware that the appellant was suffering from this illness at that time. Mr Wheatley's submission was that this was a significant factor in the situation and that, although it had not been known to the trial judge, the illness was a matter which we could take into account in considering whether or not the sentence could be regarded as excessive. Mr Wheatley very candidly and properly accepted that, although it was possible to say that the appellant had been suffering from schizophrenia at the time, there was nothing in the reports available to us, or in any other material, which showed that his illness had actually been a trigger for the commission of this particular offence. For our part we see really no indication whatever that it was such a trigger. We notice that he was very drunk at the time and it was in this condition that he broke into the house and committed the offence. Therefore while we note that there was that background, but there is nothing to indicate that the illness had a direct impact on the offence.
Mr Wheatley added that although the trial judge had indicated in his report that there were no mitigating circumstances, in fact when sentencing the appellant the trial judge had noted that the assault had not proceeded as far as it might have done, and he had also noted that the appellant had perhaps shown some signs of regret. Mr Wheatley submitted that both of these matters were matters which could be regarded as relevant to mitigation. Finally, Mr Wheatley pointed out that the sentencing judge had noted that, although the appellant had a lengthy record of previous convictions, it contained nothing comparable. In that situation, said Mr Wheatley, the appropriate way to regard this matter was that it was a one-off incident and not a kind of behaviour which the appellant might be expected to repeat in the future.
The question for this court is whether, having regard to all the circumstances, the sentence can properly be regarded as excessive. The offence here was one which was extremely nasty involving breaking into a house and an attack on a young girl of fifteen asleep in bed, an attack which has plainly had very unfortunate consequences for the girl. We see no reason to believe that the appellant's illness played any material role in this offence. In these circumstances, having regard to the nature of the offence, we are quite unable to say that the sentence selected by the trial judge was excessive, and the appeal must therefore be refused.