Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 106

HCA/2015/2601/XC

Lord Justice Clerk

Lord Bracadale

Lord Matthews

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

HER MAJESTY’S ADVOCATE

Appellant;

against

AB

Respondent:

Appellant: Niven-Smith AD; the Crown Agent

Respondent: D McKenzie; Burkinshaw Criminal Defence, Peterhead

18 November 2015

Introduction

[1]        On 2 June 2015 at the High Court in Aberdeen, the respondent was found guilty of a charge which libelled that:

“(2)      on 1 February 2014…you did assault [ND] then aged 14 years…utter threats of violence, pull down her trousers and pants, penetrate her mouth with your penis and you did thus rape her: CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009.”

On 30 June 2015 the trial judge imposed a sentence of three years imprisonment.  The Crown appeals against the sentence on the grounds of undue leniency.

Evidence
[2]        ND, the complainer, was 14 years old at the time of the offence.  She lived with her mother, brother and three sisters aged 8, 4 and 2.  The respondent was her mother’s partner and the father of her three younger sisters.  The complainer called him “Dad”.  On the date libelled, the respondent told the complainer to go into the bathroom.  He said that she was to put his penis in her mouth.  He said that he would hit her if she refused.  She had to move his penis up and down with her hand.  The incident lasted for two or three minutes.  The incident ended when the complainer’s mother came into the bathroom and shouted at the respondent.  Her mother slapped the respondent.  The respondent told the mother that ND had asked him to do it.  By this time the complainer was distressed and screaming.  The respondent had left the house.  The police were called.  Meantime, the complainer was sitting hugging herself and crying.  She said “I’m sorry mum, I’m guilty… I know you hate me.”  Her mother took this to mean that her daughter was blaming herself for what had occurred.

Mitigation and sentence
[3]        The respondent was aged 31 at the time of the offence.  He had lived with ND’s mother since he was 21, first in his native Poland and latterly (since 2007) in Scotland.  In recent times, his relationship with his partner had been troubled.  The Criminal Justice Social Work Report concluded that the respondent had no insight into the offence or to the harm caused.  He did not accept responsibility and maintained that his former partner must have “planted” the semen which had been found on the complainer’s face.  Since the respondent denied the commission of the offence, there was little information on which to analyse the risk factors.  However, he was assessed as at medium risk of re-offending.

[4]        The respondent had three previous convictions, one assault in 2008 and two road traffic offences.  All had attracted fines.  He had been in full-time employment prior to the prosecution.

Trial judge’s reasoning
[5]        The trial judge states that she was satisfied that custody was the only appropriate disposal.  She acknowledged that the respondent had been in a position of trust.  She took into account: the lack of analogous offending; the absence of “penile penetration or other activity that physically damaged the complainer’s physical integrity”; and the violence being limited to a single threat.  She did not consider that there required to be a minimum period of imprisonment simply because of the nomen criminis.

Submissions
[6]        The ground of appeal is that:

“In all of the circumstances the sentence imposed fails to recognise the gravity of the offence which involved a significant breach of trust against a child, in the family home, perpetrated with threats of violence.  The sentence imposed failed to satisfy the need for retribution and deterrence.”

In submissions, this ground was substantially developed.

[7]        The 2009 Act had broadened the definition of rape to include anal and oral penile penetration.  A similar situation had arisen earlier after the court had redefined rape to include what had hitherto been clandestine injury (Lord Advocate’s Reference (No. 1 of 2001) 2002 SCCR 435).  This had resulted in sentences previously imposed for clandestine injury being regarded as unreliable for future use once the offence had been reclassified as rape (HM Advocate v Shearer 2003 SCCR 657, LJG (Cullen) at para [11]).  The maximum penalty was life.  The legislation did not differentiate between the different modes of rape for the purposes of sentencing. 

[8]        The Government’s Policy Memorandum accompanying the Bill had stated that the new definition of rape more accurately reflected what ought to be considered as the offence of rape.  “Penile violation of a person’s … mouth is as severe an infringement of sexual autonomy as violation of a vagina” (para [38], quoting Scottish Law Commission’s 2007 Report on Rape and Other Sexual Offences (para 3.23)).  In England, similar changes had been prompted by the view expressed by the Minister for Citizenship and Immigration (Beverley Hughes) that the great weight of persuasive evidence submitted during the Government’s review of the matter was that “forced penile penetration of the mouth can be just as abhorrent, demeaning and traumatising as other forms of penile penetration and as psychologically harmful as vaginal … rape, and in some instances even more so” (Hansard: House of Commons Standing Committee B, 1^st sitting, 9 September 2003, col 9).  The advocate depute attempted a comparison between an impassive submission to intercourse and the visual and choking aspects of oral penetration.

[9]        The Sexual Offences Definitive Guideline (2014) published by the Sentencing Council for England and Wales included a series of factors relevant to categories of harm and culpability for use in calculating a starting point for sentencing, before taking account of any previous convictions and other mitigatory or aggravating factors.  Applying the Guideline, the starting point for this offence would have been 7 years, with a range of 6-9 years within which the sentence should fall, unless the interests of justice required otherwise.  It would be unusual if the sentence in Scotland were half of the minimum applicable in England.  In Tough v HM Advocate [2012] HCJAC 119, 3 years had been selected as a starting point for oral rape in circumstances where the accused had been of extremely low intelligence, the victim was unrelated and there had been no violence.

[10]      The respondent reminded the court that sentencing guidelines did not remove judicial discretion.  They should not be applied too rigidly so as to produce a mechanistic approach (HM Advocate v Graham 2010 SCCR 641, at paras [21] and [22]; Milligan v HM Advocate [2015] HCJAC 84, at para [5]).  Especially with the advent of the Scottish Sentencing Council, it would be premature to pay too much attention to the Guideline from England and Wales.  In this case, the trial judge had paid due attention to deletions from the original libel of attempted anal penetration.  She had not said that she had sentenced on the basis that the offence was one of indecent assault as distinct from rape.  She had sentenced on the basis of the evidence, and having regard to the fact that the respondent had been entitled to proceed to trial given the complainer’s account, which was departed from, of actual anal penetration and other assaults of a physical nature.  Having regard to the respondent’s lack of analogous offending and good work record, the sentence was within the range reasonably to be considered appropriate (HM Advocate v Bell 1995 SCCR 544 at 550; HM Advocate v AJV 2015 SCCR 50).

Decision

[11]      The court recognises at once that Parliament has re-categorised penile penetration of the mouth as rape.  It must sentence upon that basis.  In this context it also recognises, as it may always have done, that an act of oral rape may be as abhorrent, demeaning and traumatising as vaginal rape.  The situation in England and Wales may have been different, given that the two separate offences carried different maximum penalties (see now R v Ismail [2005] 2 Cr App R (S) 88, at para [12]).  At common law the sentences available in Scotland in respect of rape and indecent assault were unrestricted.

[12]      It must always be a question of facts and circumstances whether an act of oral rape will attract a higher sentence than a vaginal rape or vice versa.  The factors to be considered will include, in each case: the level of violence used; the relationship between the offender and the victim; the age or other vulnerability of the victim; the degree of psychological as well as physical harm caused; the age, previous convictions and character of the offender and any degree of remorse.  There are, of course, many other variables. 

[13]      The Sexual Offences Definitive Guideline is a useful comparator from a neighbouring jurisdiction, but one which should not be applied too rigidly (HM Advocate v Graham 2010 SCCR 641, LJC (Gill) at paras [21] and [22]).  It must be borne in mind that in England and Wales there are statutorily defined sentencing purposes (Criminal Justice Act 2003, s 142) which are not directly applicable in Scotland.  Nevertheless, the relevant sentencing range is a matter with which a sentence selected in Scotland might be cross-checked to see if any major disparity appears.

[14]      It is unfortunate that the trial judge appears to have had no information on the psychological effects of the offence on the complainer (cf Criminal Justice (Scotland) Act 2003, s 14 and in England R v Ismail (supra) para [8]).  She was, however, aware that this was a rape of a 14 year old child by a 31 year old adult who was in a position of trust over her.  Although the respondent is otherwise of reasonably good character and has been in steady employment, he has shown no remorse and remains in a state of denial.  In all these circumstances, the court is bound to hold that the sentence of 3 years is unduly lenient, as falling outwith the range reasonably open to the trial judge.  This is so, notwithstanding the deference which requires to be shown to the judge who saw and heard the complainer, although not the accused, who did not give evidence.  The court will substitute instead a sentence of 5 years imprisonment.