Appellant: Goodfellow, Solicitor Advocate; Drummond Miller for Graeme Murray & Co, Solicitors, Aberdeen

Respondent: Henderson AD; Crown Agent

12 January 2011

[1] On 28 May 2010 the appellant was found guilty by majority verdict of the following charge:

"On 24 May 2009...you...did assault DM...repeatedly insert your fingers into her private parts, struggle with her, shout and swear and repeatedly utter threats of violence towards her, seize her hand and repeatedly attempt to place it on your private member, seize her by the body and push her onto a bed, lie on top of her and restrain her there, bite her on the face, and repeatedly rape her all to her injury."

On 23 June 2010 an extended sentence of 10 years (comprising a custodial term of 7 years and an extension period of 3 years) was imposed with effect from 28 May. The appellant appeals against the custodial term as excessive on the ground that the trial judge gave insufficient weight to (a) the appellant's personal circumstances, (b) the mitigatory circumstances, particularly the relationship between the complainer and the appellant, and (c) the deletions from the libel.

[2] In a well-focused and concise submission Ms Goodfellow for the appellant identified the factors falling under each of these three categories that, in her submission, taken together demonstrated that the custodial term was excessive. She also relied upon the Opinion of the Court in Ramage v HM Advocate 1999 SCCR 592 in which there were a number of factual similarities and a sentence of 3 years 6 months was imposed. She invited us to quash the custodial term and impose a shorter one

[3] The appellant and the complainer were in an ongoing relationship which had lasted about 2 years. He split his time between his mother's house and the appellant's home, where he stayed "quite a lot". He and the complainer engaged in sexual intercourse on a regular basis. They had returned from a party at which both had consumed too much alcohol. The complainer got into bed where she thought the appellant was already asleep. She woke to find him touching her private parts. When she told him that she "did not want to", he became annoyed. When she told him to go home (to his mother's house) he got angrier. In spite of her crying and telling him clearly that she did not want to engage in sexual activity and that he should get off her he persisted and committed the offence. The reference to "repeated" rape reflected the fact that there were two acts of penetration, one following almost immediately after the other. It was plain from the evidence of the complainer and her 999 call that it was a frightening as well as distressing experience.

[4] We deal first of all with the submissions about the appellant's personal circumstances. We do not accept that the trial judge erred in his approach to the personal circumstances of the appellant. He rightly regarded his record of five convictions between 1999 and 2008 as a factor to be taken into account, particularly since one conviction was on indictment, two related to breaches of community service, and the most recent in 2008 was in respect of an assault on his previous girlfriend who was the mother of his eight year old daughter. Ms Goodfellow explained that that assault had occurred when the appellant's ex-girlfriend wrongly told him that their daughter was not his. His relationship with that daughter appears to be unaffected by these events. We do not consider it appropriate in the context of determining the custodial term of the appellant's sentence to investigate the circumstances of that conviction. The conviction and sentence were there as matters of record to be taken into account by the trial judge.

[5] The other feature of the appellant's circumstances on which Ms Goodfellow founded was the denial by the complainer of any contact with their daughter and her ongoing endeavour to have him deprived of his parental rights and responsibilities. We are not surprised that that factor was not particularly referred to by the trial judge in his report, since the appropriate relationship between the appellant as a convicted accused and his daughter of such tender years is an issue created and rendered complex by the very commission of the offence, and one that will require to be resolved independently of these proceedings. If the complainer and appellant remain at odds over it, it will if necessary be resolved by the appropriate Sheriff Court in due course, having regard to all relevant circumstances. In the context of this case this is not a factor to which the trial judge could be expected to attach any significant weight.

[6] We also consider that Ms Goodfellow's submission that the trial judge took insufficient account of the deletions from the libel is unfounded. The trial judge makes it clear that he had regard in determining sentence only to those elements of the libel of which the appellant was convicted. There is no hint in his report or in the remarks he made when passing sentence that he took account of any element deleted from the libel, in particular the serious allegations that the appellant covered the complainer's mouth with his hand thereby restricting her breathing, and compressed her throat. There is also no basis for considering that he proceeded on the basis that the only injuries sustained were minor physical injuries to the complainer's arm and thigh. He quite properly considered the frightening and distressing nature of the attack to be a significant element in determining sentence.

[7] That leaves what Ms Goodfellow referred to as the mitigatory circumstances, and in particular the relationship between the complainer and appellant. In Ramage the complainer and appellant had been in a sexual relationship some years earlier and a few months before the offence had become friendly again. The complainer there was prepared to have the appellant visit her but not to resume a sexual relationship. On one visit he endeavoured to engage in intimacies with her and, despite being told to stop, continued and assaulted and raped her. Although there are certain broad similarities between the cases, it is important to note that Ramage pled guilty and that the force of violence used was less. On the other hand their sexual relationship was some years in the past. In Ramage the fact of the previous sexual relationship was regarded as, to some extent, a mitigating factor, whereas the trial judge in the present case saw the fact that the appellant and the complainer were partners as an aggravating factor since it involved a breach of trust. While the element of breach of trust involved in any domestic assault is an important factor in determining the appropriate penalty, the significance of an ongoing sexual relationship in determining the penalty in a case such as this, where the gravest feature is that there was penile penetration and the conviction is for rape, is a much more complex issue. The fact of the relationship is one of a complex host of facts and circumstances that have to be taken into account in determining the appropriate sentence. In this case we consider that the trial judge gave insufficient weight to the fact that the couple had regularly engaged in sexual intercourse over a period of two years up to the night of the offence.

[8] In our opinion, having regard to the whole circumstances, particularly the ongoing sexual relationship between the complainer and the appellant, the custodial term imposed can properly be described as excessive. We consider that a custodial term of 5 years would have been adequate to reflect the gravity of the offence in light of the appellant's record of prior offending. We shall therefore quash the custodial term of 7 years and substitute a custodial term of 5 years, also with effect from 28 May 2010.