Appellant: CM Mitchell; T Duncan & Co, Montrose

Respondent: Prentice QC AD; the Crown Agent

21 March 2014

[1] On 24 May 2011, at the High Court in Dundee, the appellant, who was then aged 53, pled guilty to four charges involving the rape of and incest with his two sisters over the period from 1971 to 1979 when he was aged between 13 and 21. The offences involving the first sister occurred between the years 1971 and 1974, when the appellant was aged between 14 and 17 and the complainer between 10 and 13. The offences involving the second sister occurred between 1977 and 1979, when the appellant was aged between 19 and 21 and the complainer was aged between 11 and 13. The appellant's offending ceased when each complainer began menstruating.

[2] The first disclosure of the offences by the complainers occurred respectively in 2000 and 2001, when one of the sisters was in hospital following upon a drugs overdose and the other had subsequently attempted suicide. By that time, both complainers had significant psychiatric histories, notably depression, with sexual abuse by the appellant being one of the primary causes. Both sisters have been deeply affected by a sense of shame. The offences were first reported to the police by both complainers in 2008.

[3] The sentencing judge selected a headline sentence in cumulo of 10 years for the rape offences and 5 years concurrent on the incest charges. These were discounted, for the early plea prior to a trial diet, to 9 years and 4­1/2 years respectively. In selecting the appropriate sentence the judge took into account the age of the appellant at the time of the offending and, in particular, that it had commenced when he was a child. He was a first offender. He had had an unhappy dysfunctional childhood and maintained that he had been sexually abused by various relatives between the ages of 9 until 12. He had been appalled, upon reflection, about his behaviour and the psychological toll which it had taken on his sisters. He was assessed, in the social enquiry report, as at a low risk of re-offending. The social enquiry report recorded that the appellant admitted that he had known that raping his sisters was wrong at the time of the offences. In answer to a question posed during assessment by the Tay Project about why he had committed the offences, he had said, after a pause, that he had done so because he "enjoyed it" and it gave him power over his victims. The appellant's life subsequent to the offences involved him being married on three occasions. At the time of sentencing he was in a steady relationship. He had been employed for most of his adult life and had had a steady work record at a recycling plant for some 9 years.

[4] Leave to appeal against the sentence was initially refused at first sift as being unarguable. It was granted at second sift and the appeal proceeded to a hearing on 9 March 2012. The appeal was refused. In delivering the ex tempore Opinion of the Court, Lord Emslie said:

"[3] According to the sentencing judge ... these were very serious offences committed against the appellant's younger sisters over periods when each was aged between 10 and 13. By the time matters came to light they were in their 40s and had suffered psychiatric difficulties, including low mood and depression, with sexual abuse as a primary cause. ... By the time that these repeated offences ended the appellant was in his early 20s and apparently well aware of the effect of his activities.

[4] Taking all of these circumstances into account, we are not persuaded that the sentencing judge exercised his discretion on any wrong basis. He was well entitled to take a very serious view of repeated offences of rape and incest committed against very young girls over a period of years and we do not accept that a starting point of 10 years on such charges can be regarded as excessive in any way. The appeal is accordingly refused."

[5] The Scottish Criminal Cases Review Commission initially declined to refer the case to the court, notwithstanding the basis contended for being a comparison of the circumstances of the appellant with the outcome in Greig v HM Advocate 2012 SCCR 757. Following upon receipt of an Opinion of Counsel, that view was altered and a reference was made. The reasons in the reference analyse the distinguishing features between the appellant's case and that of Greig. The SCCRC reference continues:

"32 ... Greig's offences occurred over a period of one year (not 8 years) and Greig was at the time of the offences aged 14 or 15 years (not between 13 and 21 years of age). These factors suggest that the applicant's sentence ought to be higher than that of Greig. On the other hand the applicant pled guilty accepting responsibility for his actions while Greig was convicted after trial. In Greig the starting point was 5 years imprisonment, while in the applicant's case it was 10 years. Applying the principle of comparative justice, this disparity did not appear to the Commission to reflect the differences between the respective circumstances of the cases."

[6] The SCCRC noted that in L v HM Advocate 2003 SCCR 120 the appellant had been convicted of indecently assaulting and raping his two sisters on various occasions between 1972 and 1982, when the complainers were between 5 and 15 years of age. He had commenced offending when aged about 12 and his conduct had ceased when he was about 22. He also had a previous conviction for indecent assault and had been convicted after trial. L's conduct was described by the SCCRC as more sustained than that of the appellant, albeit that it was recognised that the court had regarded L as of "dull normal intelligence, with limited educational ability". L's sentence of 8 years imprisonment was quashed and one of 5 years was substituted. A particular factor was not only the appellant's limited intelligence but also that the conduct had commenced when he was only 12. The SCCRC recognised the vintage of the decision in L and the trend in sentencing since then. Nevertheless, it reached the view that "applying comparative justice principles the starting point selected for the appellant's sentence may be excessive and amount to a miscarriage of justice".

[7] The submissions to the court broadly followed the reasoning in the reference. It was emphasised that the appellant had come from a dysfunctional household, where he had been the one male in a family of 7 children. His father had been an alcoholic. When one of the complainers reported what had happened to her mother, her mother had slapped her. The core element of the submission was that the conduct had started when the appellant was still a child. It was, as it was put, a product of the environment in which the appellant had grown up. In particular, it was said that the appellant's current position was that his conduct had occurred because he had regarded it as the way he was "meant to behave". It was how a brother was supposed to demonstrate love for his sister. It was accepted that the circumstances in Greig related to offences, all of which had occurred when the appellant in that case was a child. On the other hand, the appellant in Greig did not have a dysfunctional background at the level current in the present case. L was remarkably similar in circumstances and was as about on all fours as a case could be to the present one. The appellant's family life since the offending had been proactive and useful. He had spent 26 years as an amateur referee, apart from his employment. He had made a positive contribution to society. In all the circumstances, having regard to the sentences in Greig, and particularly L, the period selected by the sentencing judge had been excessive.

[8] The principle of comparative justice, which was referred to in the SCCRC report, but not, for sound reasons, advanced at the appeal hearing, is one which applies between co-accused in similar circumstances. On the other hand, it is true to say that consistency in sentencing practice as a generality can be an important consideration.

[9] Greig v HM Advocate (supra) is readily distinguishable, because the court was there dealing with offences which were all committed when the appellant had been a child. The court accordingly required to modify the sentence selected in order to reflect that significant circumstance. Similar considerations apply to the offending against the first sister in this case, but, critically, they do not apply to the offending against the second sister, all of which was committed whilst the appellant was an adult.

[10] There are two important distinguishing features between this case and L v HM Advocate (supra). The first is the limited intelligence of the appellant in L, which was regarded as important by the court when reducing the first instance sentence. Secondly, as was correctly recognised by the SCCRC and in submissions, the approach of the courts to sexual offending of this nature and offenders in this context has altered considerably over the last decade particularly in the light of increasing insight into the psychological trauma which can result, as it clearly has in this case.

[11] It is significant that in this case the court is dealing, in relation to the second sister, with an adult offender and one who, according to what he had said to the social worker, knew that what he was doing was wrong at the time. The truth of that acceptance is easily demonstrated by the fact that the appellant pled guilty to an indictment which libelled that he had been holding his hand over the mouths of the girls during the course of the rapes. The girls were, it was also accepted, in a distressed state while the offences were perpetrated. The passage already quoted from the Tay Project in relation to the reason, which the appellant himself gave for his offending, is of equal importance.

[12] The sentence selected by the first instance court was at the higher end of what might be considered reasonable for this type of offending. Nevertheless, the sole question for this court is whether in all the circumstances the sentence selected can be described as excessive. The court is unable to hold that this sentence, which involved the repeated rape by an adult of a very young relative, can be regarded as excessive. This appeal is accordingly refused.