APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 88
Lord Justice Clerk Lord Eassie Lord Bracadale	Appeal No: XC212/13   OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK,   in   CROWN APPEAL AGAINST SENTENCE   by   HER MAJESTY'S ADVOCATE   Appellant;   against   STEPHEN COOPERWHITE   Respondent:   _______

 

Appellant: I McSporran, AD; the Crown Agent

Respondent: Ross; Hughes Dowdall, Glasgow

 

21 June 2013

General

[1] On 27 February 2013, at the High Court in Glasgow, the respondent was found guilty of charges that libelled that:

"(4) on an occasion between 1 September 2002 and 31 October 2002 ... at ... you ... did assault MD ... place your hand on her shoulder, hold her down against a mattress, pull her pants to the side, repeatedly ignore her pleas that you stop and her attempts to push you away and you did rape her; and

(5) on various occasions between 1 November 2009 and 20 August 2010 ... at ... you ... did assault VG ... and did:

(a) whilst she was asleep and incapable of giving or withholding consent, attempt to penetrate her vagina with your penis;

(b) repeatedly ignore her pleas that you desist from having sexual intercourse with her and you did rape her."

 

On 22 March 2013, the trial judge sentenced the respondent, who was aged 35 at the time, to six years imprisonment.

 

The Offences
[2] The complainer MD was aged 35 at the time of the trial. She is a teacher. She had met the respondent while she was studying at university in 1997. She became pregnant and the couple began living together shortly after the birth of their child in 1998. The complainer obtained employment in the Western Isles and the family moved there in about July 2000. In July 2001 the couple married. They engaged in sexual intercourse on an intermittent basis, although the complainer did not regard this as particularly successful. In July 2002, the complainer discovered that she was almost five months pregnant. She was diagnosed with placenta praevia. The trial judge notes (para [20]) that both the complainer and the respondent were aware of advice from the local medical staff that this condition made it dangerous to have sexual intercourse. The complainer, in particular, understood that intercourse could cause a haemorrhage which, given her remoteness from specialist care, could be fatal to both mother and child. On that basis the complainer refused to have sexual intercourse with the respondent prior to the birth of the child. The respondent had remained keen to have such intercourse. The only medical evidence at the trial, from the complainer's current general practitioner, was that it might be safe to have "gentle intercourse", although the doctor accepted that an obstetrician might disagree with that assessment.

[3] One night, towards the end of September 2002, the complainer was dozing in bed when the respondent joined her and put his hand on her shoulder. He began to move her pants to the side, but she had said either "go away" or "no". She told him to stop what he was doing, but he continued to try to have sex with her. She could feel his naked penis in the area of her vagina. She kept saying, "no we can't, leave me alone, no," but he persisted. He held her down with his hand on her shoulder more firmly, although she struggled to push him away with her left elbow. He penetrated her with his penis and she gave up struggling as she was concerned that this could itself be harmful to the child. The respondent continued until ejaculation, after which he got up and left the room.

[4] Although the complainer attended at her GP's surgery within a day or so, in relation to minor vaginal bleeding, she did not complain about being raped. She did not report the incident to the police until 2010, some eight years later. She had on the other hand told her solicitor about it in connection with civil proceedings. After the incident, the complainer had returned to the mainland. The parties had separated and ultimately divorced in 2006. The child was born and the respondent continued to have contact with both children on a fortnightly basis.

[5] The complainer, VG, who was also 35 at the time of the trial, commenced a relationship with the respondent in 2008. They began living together and eventually moved into a flat in joint names. The complainer decided to join the police force. This involved considerable training course work and examinations. It caused a degree of friction between the complainer and the respondent. The complainer would often go to bed quite early, exhausted by the demands of the course and looking after her young child. The respondent would come to bed and try to initiate sex. The complainer would generally be unresponsive and indicate that she was too tired. Sometimes the respondent accepted this and desisted. There were, however, occasions when the complainer would wake up and find the respondent trying to have sex with her. He would have removed her underwear or pyjamas and would be lying on top of her, his penis erect. On some occasions she would say "no" but he would have sex with her anyway. The frequency of this was not entirely clear from the evidence, but it appears to have happened on at least four occasions. Throughout the period during which these rapes took place, consensual intercourse also occurred. The last occasion when the complainer was raped was in August 2010.

[6] The complainer succeeded in becoming a police officer. In early course, she told a fellow police officer about what had been happening and the matter was reported to a senior officer. She gave a statement concerning the rapes for the first time in September 2010. Meantime, she had found divorce papers belonging to the respondent which contained a reference to the allegation of rape of the complainer MD. A connection was therefore made with MD, who would not otherwise have reported the rape herself.

[7] The respondent gave evidence and denied that he had raped either complainer, although he was not able to offer a convincing explanation as to why two apparently responsible women should make false complaints and persist with them through to trial. In relation to MD, he said that he had been aware of the danger presented by her pregnancy but that he did not have intercourse with her during that time. Any intercourse with VG had been consensual and never whilst she had been asleep.

 

Sentence
[8] At the time of sentencing, the trial judge had a Criminal Justice Social Work Report and one from the Pathways Partnership Project. The respondent continued to deny culpability and explained to the social worker that he thought that the complainers had conspired against him in order to cause trouble. Not surprisingly, in these circumstances, it was concluded that he displayed no victim empathy or remorse.

[9] In mitigation it was said that the respondent had had a stable upbringing with supportive parents, both of whom were still alive. Since leaving school with limited qualifications, he had engaged in a broad range of employment, mostly in the retail trade. He had joined the police in 2009, but had been suspended following upon allegations of assault on VG's child, of which he was ultimately convicted in 2012. This had prompted his resignation from the police and, coupled with the criminal proceedings, feelings of despair with some suicidal ideation. He had been unemployed since resigning.

[10] The respondent informed the social worker that he did not intend to embark upon any further relationships with adult females and was therefore of the view that he would not commit any further offences. The CJSWR had reported the respondent as being at "moderate risk" of re-offending, using the LSIR:SV risk assessment tool. A more detailed assessment had been carried out by the Pathways Partnership Project. They had used the static Risk Matrix 2000 assessment tool, which had brought out a "low category" risk of re-offending. A static and dynamic assessment tool (SA07) suggested that the RM2000 category had perhaps underestimated the risk which the respondent posed.

[11] In selecting the sentence he did, the trial judge explains that he treated the crimes as serious, involving the rape of two different women with whom the respondent was living at the time. He took into account, as aggravating features, the risk to the complainer and her child in respect of the rape of the first complainer and the repetition of incidents in relation to the second complainer. He also noted the various mitigating factors set out above.

 

Grounds of appeal and submissions
[12] The Note of Appeal, so far as relevant and insisted upon, complains that the sentence selected was "unduly lenient". In submissions, particular attention was focused upon the element of danger to the first complainer and her unborn child, the course of conduct in relation to the second complainer and the lack of empathy which the respondent displayed; indicating that the risk posed by him was greater than the low category. It was suggested that the circumstances merited the imposition of an extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. Overall, the sentence did not reflect the gravity of the offences, the need for retribution and deterrence, as well as the protection of the public.

[13] It was accepted, under reference to HM Advocate v Bell 1995 SCCR 244, that, for a sentence to be seen as unduly lenient, it required to fall outside the range of sentences which a trial judge, applying his mind to all relevant factors, could reasonably have considered appropriate. Nevertheless, under reference to Ramage v HM Advocate 1999 SCCR 592, HM Advocate v Shearer 2003 SCCR 657, Hercus v HM Advocate 2004 SCCR 140, Petrie v HM Advocate 2012 JC 1 and Greig v HM Advocate 2012 SCCR 757, it was contended that the sentence selected by the trial judge had strayed outside the appropriate range.

[14] The respondent accepted that the sentence was not at the higher end of the scale appropriate to offences of this type. On the other hand, the Crown had failed to demonstrate that it was below the lower margin of this scale. The cases cited demonstrated that "familiarity" between a rapist and his victim was regarded as something justifying a more lenient sentence than might normally have been thought appropriate (Ramage v HM Advocate (supra) and Petrie v HM Advocate (supra)). Even in cases where no prior relationship had existed, short sentences had been imposed for rape in particular circumstances (HM Advocate v Shearer (supra); HM Advocate v Currie 2009 SCCR 48; L v HM Advocate 2003 SCCR 120; HM Advocate v Hercus (supra); and Greig v HM Advocate (supra)). The sentence which had been imposed was within the range open to the trial judge. In relation to an extended sentence, this had not been requested by the Crown at the time and thus no basis for a challenge had been properly laid in the trial court (HM Advocate v Bennett 1996 SCCR 331, LJG (Hope) at 338).

 

Decision
[15] The court reached the view that this was not a sentence which could be classified as unduly lenient without any difficulty. It is important to note at the outset that any sentence imposed by a trial court must be one which is justified by the conviction. That, in turn, depends upon the extent of the libel. The court cannot sentence a convicted person in respect of a recognised aggravation which does not form part of the libel on which he has been convicted. In this case, therefore, the court does not consider that it was legitimate for the trial court to take into account any danger to the life of the complainer, MD, as a result of the assault involved in the rape. Danger to life is a recognised aggravation of assault and, if it is to be founded upon, requires to be libelled. Accordingly, the court does not think it is a good ground of appeal that an aggravation, which has not been libelled, ought to have prompted a higher sentence. Given the importance of this factor in the appeal as presented to the court, this alone would have resulted in the appeal failing.

[16] In relation to the other matters raised, the court is of the view that the trial judge took all of the various factors into account when carefully selecting the period of custody which would inevitably follow from a conviction for rape. He had had regard to the repeated nature of the offending in relation to the second complainer, but balanced that with the various mitigatory factors presented; notably the respondent's lack of previous offending and the low risk of his re-offending, albeit qualified, mentioned in the reports. In light of the low risk assessment, the court does not consider that it would have been appropriate for the trial judge to have imposed an extended sentence. In short, therefore, this was a sentence which, although lenient, did fall within the range of sentences reasonably open to the trial judge.

 

Further considerations
[17] The significance to sentence of a pre-existing, or existing, sexual relationship between a rapist and his victim is one of continuing debate. It is one which this court ought to address in the interests of, first, certainty in sentencing policy and, secondly, consistency amongst sentencers. It had been hoped that this particular case might have provided an opportunity for the court to undertake that task and that suitable guidelines might have been issued (1995 Act, s 118(7)). However, at the hearing, it became clear that the possibility of the court issuing such guidelines had not been canvassed with the parties and the court did not hear submissions on the general points of principle involved. This is not then a case in which guidelines can properly be given. Nevertheless, the following comments might usefully be made, given that this matter will come before the court again for consideration.

[18] It is undoubtedly correct, as the respondent submitted, that the existence of both a pre-existing and an existing sexual relationship has been regarded by the court, in the past, as a mitigating circumstance. This is clear, first, from Ramage v HM Advocate 1999 SCCR 592 in which the court reduced a five year sentence for rape to one of three and a half years. The circumstances had been that the appellant and the complainer had been in a relationship of a sexual nature, but that this had ceased some six years before the incident. Not long before the rape, contact had been re-established, but the complainer had made it clear that further sexual relations were not an option. In delivering the Opinion of the Court, Lord Caplan said this (at 594):

"... there are factors in this case which could perhaps justify treating the case as being less serious than would normally be the case with a rape offence. The appellant and the complainer were not in any sense strangers. They had been in an intimate relationship before and, indeed, at one point they had been in a sexual relationship. Moreover they had resumed friendship and were seeing each other regularly (although it must be acknowledged that the complainer in no way gave the appellant to understand that she was prepared to resume a sexual relationship with him). Nevertheless, there was perhaps room for the appellant to delude himself as to what the position was on that point. Beyond the rape itself there had been no serious degree of personal violence and the appellant was not likely to repeat this conduct with other women".

 

It may be that the repetitive use of the word "perhaps" shows that the court may have felt somewhat uncomfortable with what it was saying and, indeed, with the import of its dictum. Nevertheless, that dictum seems to be clear authority for the proposition that, if there has been a prior sexual relationship, that is a mitigating factor. Indeed, following the logic of the dictum, mere acquaintanceship may be such a factor, at least when compared with the rare "stranger rape".

[19] HM Advocate v Shearer 2003 SCCR 657 is perhaps of marginal importance on this question. The conviction there was for rape, albeit that the facts were such as would, prior to Lord Advocate's Reference (No.1 of 2001) 2002 SCCR 435, have been treated as a form of indecent assault, known as clandestine injury. A sentence of eighteen months was increased to one of three and a half years in circumstances where the complainer, who had had no prior intimacy with the accused, woke up to find him having sexual intercourse with her. In delivering the Opinion of the Court, the Lord Justice General (Cullen) stated that:

"It is important, in our view, for the sentencer to avoid treating the fact that the complainer was asleep or unconscious as if it lessened the gravity of the accused having sexual intercourse with the complainer without her consent. While there are no doubt cases of rape in which the use of force or the threat of force called for very substantial sentences, we demur from the view that the present type of case should be regarded as substantially less serious, for example, than one in which the complainer was conscious but in which the least amount of force was used or threatened and the complainer experienced relatively little fear, distress or anger at the time. The culpability of the accused in each of these cases would, in our view, be broadly similar".

 

The Crown invited the court to give an indication as to the range of sentences appropriate for cases of that type. The court expressly declined to do so on the view that:

"Cases of the type with which we are concerned in this appeal are relatively unusual in their circumstances. We have already indicated how such cases might be compared with cases in which the complainer is conscious. Beyond that it does not appear to us to be useful or practicable for us to indicate what sentences would be appropriate, since so much will depend upon the circumstances of the individual case".

 

Experience has dictated that cases of the type under consideration in Shearer are not at all unusual. However, although there are, as yet, no guidelines available to sentencers, the level selected in Shearer has undoubtedly been used by sentencers as the benchmark.

[20] Of more significance is Petrie v HM Advocate 2012 JC 1. That was a conviction of rape "to ... injury" in which a seven year custodial element contained in an extended sentence was reduced to one of five years. One factor of importance was the previous record of the appellant, but another appears to have been the fact that the rape occurred in the context of an "on-going relationship" involving regular sexual intercourse between the parties. On the particular occasion, the complainer had entered the same bed as the appellant, albeit that she thought that he had been asleep when she did so. When she awoke, she had resisted intercourse without success. There was specific reference to Ramage, which was analysed by Lord Bonomy, delivering the Opinion of the Court, as follows:

"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 on-going 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 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".

 

The change in the definition of rape may result in a different approach, but this case is a further illustration of the court being prepared to regard the existence of an on-going sexual relationship as a significant factor in reducing a sentence imposed by a trial judge, who regarded the existence of that relationship as one of trust and hence an aggravating feature of the crime.

[21] Although not specifically referred to, the court is conscious of the work which has been undertaken in other jurisdictions by the courts and others in an attempt to provide the judiciary with useful guidance on how to approach sentencing in rape cases generally and in "relationship rape" in particular. In England and Wales there is the "Sexual Offences Act 2003 - Definitive Guideline (issued 2007)", which replaced the former guidance in Millberry [2003] 2 Cr App R (S) 31 and attracted the court's attention in HM Advocate v Graham 2011 JC 1. The Guideline has recently been the subject of further public consultation. The most significant feature of the guideline, for present purposes, is its analysis (at para 2.6) of Millberry as establishing the principle that "sentencers should adopt the same starting point for 'relationship rape' or 'acquaintance rape' as for 'stranger rape'". The "Overarching principles - Domestic Violence Guideline (2006)" considers whether the existence of a domestic relationship between offender and victim should be regarded as a mitigatory or an aggravating factor (see para 3.5).

[22] Reverting to exactly what was said in Millberry (supra), Lord Woolf CJ, delivering the judgment of the court, quoted the advice given in a research report, which had been commissioned by the now defunct Sentencing Advisory Panel, entitled "Attitudes to date rape and relationship rape, a qualitative study". The Panel had stressed that any appellate sentencing guidance on rape should deal explicitly with the question of sentencing levels for "relationship rape" and "acquaintance rape" as well as "stranger rape". The court (at para 9) agreed with the proposition that it should be made clear that the starting point in the case of all three categories should be the same. This approach appears to be radically different from that adopted in Ramage and Petrie and it is this difference which will require to be expressly addressed in any future consideration.

[23] It is of course possible to say that, in relation to any sentence for criminal conduct, each case will depend upon its facts and circumstances; as indeed it will. However, it is important that general principles are established in order to ensure both consistency and predictability in so far as that is possible and desirable. First instance courts normally benefit from clear statements of principle from the appellate courts, as was the case in England following Millberry (supra) and in Ireland, consequent upon DPP v Keane [2007] 3 IR 177 (Murray CJ commenting upon the detailed analysis by Charleton J in DPP v Drought [2007] 1 IEHC 310). In a matter of such importance as that under consideration, the court would hope also to have the benefit of guidance from the jurisdictions in the Commonwealth and beyond when it comes to address the significance of the relationship between a rapist and his victim in the future.

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 88
Lord Justice Clerk Lord Eassie Lord Bracadale	Appeal No: XC212/13   OPINION OF LORD EASSIE   in   CROWN APPEAL AGAINST SENTENCE   by   HER MAJESTY'S ADVOCATE   Appellant;   against   STEPHEN COOPERWHITE   Respondent:   _______

 

Appellant: I McSporran, AD; the Crown Agent

Respondent: Ross; Hughes Dowdall, Glasgow

 

21 June 2013

[24] Your Lordship in the Chair has set out the terms of the charges of which the respondent was convicted and summarised the circumstances of the offences reported to this Court by the sentencing judge. I am grateful to your Lordship for that exposition and for the summary of the submissions advanced in this appeal.

[25] In his report the sentencing judge explains the careful consideration which he gave to the sentencing exercise with which he was faced and, but for any element of an aggravation of the offence in the first charge being to danger of life, I do not consider that his approach and reasoning, or the sentence which he selected in consequence, are open to any criticism. As respects the aggravation which the Advocate depute sought to deploy, I agree with your Lordship that, were it material to the Crown case, an aggravation of that nature should have been the subject of proper averment in the charge, and been supported by appropriate medical evidence, so that the defence might have a proper opportunity to dispute the proposition and to explore evidence relating to, or touching upon, the knowledge of the accused respecting the alleged danger.

[26] For these, and the reasons otherwise expressed by your Lordship, I was - and am - in no doubt that, as we announced at the conclusion of the hearing, the challenge of the Lord Advocate to the sentencing judge's decision is ill- founded and that the appeal must be refused.

[27] Your Lordship does however go on to express in paragraph [17] and following, under the heading "Further considerations", certain views which I should not be taken as sharing, at least in their entirety.

[28] Whether this particular appeal might be the occasion for the issuing of sentencing guidelines was not canvassed with me prior to the hearing, nor, as I understand it, was it discussed by a bench of this court at any earlier procedural hearing. For my part, I am not presently persuaded that there is any evident need for the giving of any such guideline decision in this area of sentencing. I do not detect that, in this jurisdiction, there is any wide discrepancy or difference of approach in the sentencing of those convicted of rape and similar sexual offences. The discretion of sentencing judges is generally soundly exercised. The cases which occur in this area of sentencing tend to be particularly "fact specific" and relationships between complainers and accused may vary considerably in their nature and quality. I have reservations whether in practice issuing of guidelines in this area would prove to be of real assistance to sentencing judges.

[29] I would also observe that, in my view, it is necessary to exercise caution when considering sentencing guidance issued in other jurisdictions. The general sentencing framework in the other jurisdiction may be very different and include provisions, for example power to suspend prison sentences, not available in Scotland. Provisions on parole, early release or remission may vary, as also will the general level or tone of sentences in the particular country in question.

 

 

APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 88
Lord Justice Clerk Lord Eassie Lord Bracadale	Appeal No: XC212/13   OPINION OF LORD BRACADALE   in   CROWN APPEAL AGAINST SENTENCE   by   HER MAJESTY'S ADVOCATE   Appellant;   against   STEPHEN COOPERWHITE   Respondent:   _______

 

Appellant: I McSporran, AD; the Crown Agent

Respondent: Ross; Hughes Dowdall, Glasgow

 

21 June 2013

[30] For the reasons set out by your Lordship in the chair I agree that this appeal should be refused.  In addition, I agree that it is appropriate to set out the broader issues which might be addressed in a suitable case in the future.