Scottish High Court of Justiciary Decisons

JASON DICKSON THOMSON v. HER MAJESTY'S ADVOCATE [1999] ScotHC 46 (3rd March, 1999)

The appellant was found guilty on a charge of rape which had been committed on 22 June 1998. He was sentenced to seven years imprisonment backdated to 23 June 1998.

The terms of the charge in respect of which the appellant was convicted was that at Stirling Street, Denny he assaulted the complainer, seized her by the neck and body, threatened her, pushed and struggled with her, forced her into an alleyway there and at the rear of the houses there pushed her against a wall, attempted to kiss her on the mouth, pulled down her skirt and pants, forced her to lie on the ground, lay on top of her, kissed her on the mouth, handled her breasts and raped her to her injury.

The report by the sentencing judge gives us an account of the events. He says that on the evening in question the complainer had had a few drinks. She was with a cousin. Eventually the complainer walked home through the centre of Denny and as she was doing so she heard footsteps behind her. She turned round, and the next thing was that she was in a headlock with an arm round her neck. The complainer then described what happened and said that after the incident she walked straight home. When the complainer got home at about 1.25am she shouted to her mother. She dialled 999 and told the police that she had been raped. Her mother described that she was very distressed and clearly in shock, tearful and quite pale. Her eyes were expressionless and she looked shocked.

The report by the sentencing judge tells us that a later medical examination of the complainer revealed superficial injuries to her neck and shoulder but no injuries to her genital area or any other part of her body. Medical examination of the appellant showed a recent area of abrasion and bruising to the right knee.

In the report the sentencing judge gives us an account of various matters that were put before him, apart from the account of the information which we already given. He had a schedule of previous convictions which was a long one and contained a number of convictions for assault but none for sexual offences. Apart from one conviction for assault in 1996 when the appellant had appeared on indictment in the sheriff court and for which he had been sentenced to eighteen months imprisonment, all the previous convictions were either at summary of district level. However a number of these were for crimes of violence and the appellant must have been released from prison after serving his last sentence only a few weeks before committing the rape.

He took the view that it was a bad case of rape. It was not as bad as it would have been had the jury not deleted various parts of the charge. This referred to previous allegations that the appellant had used a knife, threatened to kill the complainer, forced her to submit to oral intercourse and attempted to force anal intercourse upon her. The sentencing judge goes on to say that nevertheless the appellant had been convicted of attacking an unknown female in the street, threatening her, forcing her round the back of the houses there and raping her. There could, he said, be no possible justification for such an act and on the version of events which the jury must have accepted, nothing that the complainer did could in any way have led the appellant to think that he was doing other than committing a very serious offence on her.

Mr Shead who appeared today on behalf of the appellant accepted that the offence of which the appellant had been convicted merited a lengthy sentence. However, he suggested that the sentencing judge had attached undue weight to the gravity of the offence and to the previous convictions of the appellant. He pointed out that the medical examination had shown that the complainer had suffered only superficial injury and none in respect of the genital area.

We are quite unable to see any ground for interfering with the decision of the sentencing judge. His description of the case and his approach to it cannot be faulted. In our view the sentence which he imposed was well within the range of his discretion, having regard to the nature of the case and the previous record of the appellant. The appeal accordingly is refused.