Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 102

HCA/2016/000398/XC

Lord Brodie

Lady Clark of Calton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD BRODIE

in

APPEAL AGAINST SENTENCE

By

HER MAJESTY’S ADVOCATE

Appellant

against

GORDON COLLINS

Respondent

Appellant:  McSporran QC (sol adv) AD; Crown Agent

Respondent:  Scott QC (sol adv), Labaki; Capital Defence Lawyers

25 November 2016

Introduction
[1]        On 27 April 2016 at Edinburgh High Court, the respondent was found guilty of a series of historic sexual offences.  The respondent was convicted of five charges of indecent behaviour towards girls aged between 12 and 16, contrary to section 5 of the Sexual Offences (Scotland) Act 1976 (charge 1) and section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 (charges 2, 5, 6 and 8) respectively.  He was also convicted of a charge of rape at common law (charge 7).  The statutory charges libelled that the respondent kissed and fondled the complainers MM, AF, CM and HH.  Charge 7 libelled that:

“on various occasions between 1 March 2004 and 28 February 2005, both dates inclusive, at Northfield Young Persons Unit, 34 Northfield Drive, Edinburgh, you … did indecently assault CM … and did enter her bedroom at night, shut the door, push her on to her bed, sit on her bed beside her, place your hand in her trousers and underpants, handle her vagina, penetrate her vagina with your fingers, remove your lower clothing, remove her lower clothing, lie on top of her, handle her naked breasts, kiss her on her neck, kiss her on the mouth, penetrate her vagina with your penis, and ejaculate inside her vagina and you did repeatedly rape her”.

[2]        On 29 June 2016 the trial judge imposed a cumulo sentence of 6 years’ imprisonment.  The Crown appeals against the sentence on the grounds of undue leniency.  

Evidence
[3]        The offences were committed between July 1995 and August 2006 at two secure residential units for children and young persons:  Northfield Young Persons Unit (“Northfield”) and St Katherine’s Secure Unit (“St Katherine’s”), both in Edinburgh.  Northfield was an “open” unit:  residents were allowed a degree of freedom to come and go from the unit as long as they notified staff;  residents also left the unit each day to attend school before returning to the unit in the afternoon.  St Katherine’s, on the other hand, was a “secure” or “lock-down” unit:  residents were not permitted to leave without supervision and received their schooling on site. 

[4]        The respondent was employed as a residential care worker in the units at the time.  The Crown relied on the doctrine of mutual corroboration to corroborate the accounts of the four complainers, the offences having come to light following a cold case review that joined together complaints from separate former residents of the young people’s units. 

[5]        Each of the four complainers was in some way troubled or had experienced a difficult upbringing.  The evidence disclosed that over a period of some 11 years the respondent groomed each of the complainers, gaining their trust and making them feel special, before sexually abusing them.  The offending escalated, in the case of the complainer CM, into penetrative sexual abuse.  As a result of their own difficulties, the complainers did not report what had happened at the time;  their evidence disclosed that they had, in fact, tended to feel responsible for what had occurred.

The evidence of the complainer MM (charges 1 and 2)
[6]        MM was aged 33 and had resided at Northfield between 1995 and 1997 when she was a teenager.  She had experienced a troubled upbringing and had been placed in Northfield for her own safety.  The unit had between 8 and 10 young people resident at any one time.  It was a mixed unit, although MM recalled that there were more girls there than boys during her stay.  She remembered the respondent very well.  He was seen by residents as the most approachable member of staff and he would frequently socialise with them. 

[7]        In 1995, when MM had been at Northfield for a few months, the respondent approached her when no other staff or residents were present.  The respondent pulled her towards him and kissed her on the lips;  afterwards he told her not to tell anyone.  He continued to flirt with her and would repeatedly touch and squeeze her bottom.  MM stated that the respondent made her feel special;  she felt as if she was in a relationship with him.  MM also spoke to having had a sexual relationship with the respondent.  Although they had full penetrative sex on about three occasions, the respondent was not charged with an offence, but this evidence was led in terms of a docket appended to the indictment.  The relationship aroused suspicions and an internal investigation took place in 1997.  When she was interviewed in July 1997 in connection with an allegation that the respondent was having an inappropriate relationship with her, MM denied that there was such a relationship.  In 2014, however, she gave a statement to police who had contacted her in relation to the investigation that led to the present charges.

The evidence of the complainer AF (charge 5)
[8]        AF, aged 26, had been a resident at Northfield in late 2001 and 2002 when she was about 13.  She met the respondent at the unit and initially regarded him as very pleasant;  he would take her and other residents for ice cream and give them sweets.  AF gave evidence that after she had been at the unit for several months, the respondent sat next to her on a sofa in the unit’s sitting room.  The respondent edged towards her and lifted her on to his knee.  He then put his face into her neck and made a low growling noise whilst touching her private parts over her clothing.  AF stated that the respondent continued to rub her private parts with his hand.  She initially froze during the incident but she then stood up, left and ran upstairs to her bedroom.  At the time, AF told no one about what had happened.  She described herself as having been emotionally damaged by the incident.  After he had assaulted her, the respondent acted as if nothing had happened. 

The evidence of the complainer CM (charges 6 and 7)
[9]        CM was aged 26.  She had been in the care system from the age of 12 and was placed at Northfield when she was about 14 after her foster care placement broke down.  Prior to being in care, she had been exposed to violence at the hands of her stepfather.  CM described the respondent as being nice at first;  he gave her sweets and, occasionally, cigarettes.  CM spoke to the respondent about her troubled upbringing and confided in him that her stepfather had physically abused her. 

[10]      After CM had begun to confide in the respondent, he took her in his car to watch a football match in Motherwell.  When the match ended, their team having won, the respondent jumped out of his seat and kissed CM on the mouth.  She was taken aback by this.  They returned to Northfield in the respondent’s car.  On the journey home, he tried to touch her leg by putting his hand on her knee;  he then attempted to place his hand on her private parts over her clothing.  CM gave evidence that this made her feel “horrible”.  She returned to her bedroom when they returned to Northfield.  CM decided that she did not really like the respondent after that and tried to avoid being alone with him.  A couple of weeks later, however, the respondent again started trying to touch her sexually, usually when they were in communal areas of the unit but with no one else present.  These incidents formed the basis of charge 6. 

[11]      CM also gave evidence of having been raped by the respondent on four occasions over a period of just over a year (charge 7).  On the first occasion, the respondent came into her room and shut the door behind him.  He kissed her on the face and around the neck before penetrating her until he ejaculated.  CM did not want to have intercourse with the respondent.  She described having kept her eyes shut until the respondent had finished whereupon he said to her that:  “It will be our wee secret”.  CM did not tell anyone what happened for fear of being disbelieved.  The respondent then raped her on another three occasions, again within her room in the unit.  On each occasion CM was unable to do anything;  she lay still and froze.

The evidence of the complainer HH (charge 8)
[12]      HH was aged 25 and had been a resident at Northfield as a young teenager;  however, the incidents to which she spoke took place when she was aged 15 and a resident at St Katherine’s.  HH had been admitted there against her will.  The respondent was working at St Katherine’s at the time.  HH remembered him from Northfield and regarded him as friendly;  she was comforted to see a familiar face in the secure unit.  HH gave evidence that initially the respondent acted professionally towards her;  however, he soon started giving her more hugs and cuddles, and always seemed to be the member of staff who answered her buzzer when she called from her room.  Although HH enjoyed the attention at first, she began to feel uncomfortable.  When the respondent cuddled her he would make a growling sound and nibble at her neck.  On occasion he would touch her bottom and make a grunting noise.  HH also spoke to a further incident where the respondent walked up behind her and cupped his hands around her breasts.

[13]      HH recorded the incidents in her diary.  She accepted that she had felt something of a special bond with the respondent at the time but explained that she was emotionally confused.  HH did not tell the other members of staff what was happening because she did not think that she would be believed.

Mitigation
[14]      The trial judge in her report to this court summarises the plea in mitigation that she had heard as follows: 

“[Counsel] emphasised the troubled personal circumstances during youth of Mr Collins himself. He pointed out that apart from two minor convictions in the mid-1970s he had no criminal convictions of note and certainly nothing analogous. He had been involved in charity work. He continued to have the support of his wife who had given evidence that she did not believe the allegations made against him. On any view the consequences for the respondent were going to be significant. It was noteworthy that the criminal justice social work report had considered him to be at low risk both sexual and general offending. The offences had taken place some years ago.”

[15]      As indicated by counsel in his plea in mitigation to the trial judge, the risk assessment undertaken on the respondent as part of the criminal justice social work report (“CJSWR”) assessed him as presenting a low risk of both sexual and general offending.  The author of the report noted, however, that as the respondent continued to deny the offences it was difficult to accurately assess his actual motivations behind the offending behaviour.  In particular, the author of the report noted that, although not a risk factor in itself, the respondent’s level of denial limited the risk assessment regarding whether he had a sexual interest in children or whether such predilections would present problems in the future.  

Trial judge’s reasoning
[16]      The trial judge issued a sentencing statement in which she referred to the respondent having committed “an appalling course of criminal conduct consisting of the predatory sexual abuse of four young teenage girls” who were in his care.  She noted that each of the four complainers was extremely vulnerable and that the respondent was in a position of trust and authority in relation to each of them.  The respondent abused his position of trust by developing emotional and sexual relationships with the complainers.  The trial judge also noted that the respondent had shown no remorse for his actions and continued to deny responsibility for the offences.

[17]      In her report to this court, the trial judge reports that she considered that a significant custodial sentence was the only appropriate disposal;  she regarded 6 years as a lengthy period of custody.  She took account of the respondent’s age and lack of analogous offending, and also his low risk of re-offending as assessed in the CJSWR.  She considered that the seriousness of the offences involving gross abuse of trust over a lengthy period of time was appropriately recognised by the sentence of 6 years’ imprisonment.

Note of appeal and submissions

Appellant
[18]      The ground of appeal is that:

“The sentence imposed failed to give due weight to the gravity of the offence[s].  The offences are aggravated by the ages and particular vulnerabilities of the complainers, the repeated nature of the conduct libelled in charge 7, the degree of planning by the respondent and the abuse of trust involved … It is submitted that the sentence of six years was inappropriate.  Whilst it is accepted that the Learned Judge has taken account of the said aggravating factors, it is submitted that she was in error in giving insufficient weight to these factors in determination of sentence … The sentence imposed failed to satisfy the need for retribution and deterrence and the Learned Judge has placed undue weight upon the age of the [respondent] and the low risk of reoffending referred to in the Criminal Justice Social Work Report.  The Learned Judge has placed undue weight on the mitigation given on behalf of the respondent and has fallen into error in consideration of all the circumstances of the case”. 

[19]      This ground was developed in submissions.  By reference to the decision in H.M. Advocate v Bell, 1995 SCCR 244 at 250, it was submitted that the sentence was unduly lenient in that it fell outside the range of sentences which the judge at first instance, applying her mind to all the relevant factors, could reasonably have considered appropriate.  Whilst the appeal was directed at the cumulo sentence imposed in respect of all six charges of which the respondent had been convicted, the advocate depute focused particularly on charge 7.  As charge 7 comprised the repeated rape of a vulnerable young girl over a period of 12 months by an individual to whom she was entitled to look for guidance and support, a significantly more substantial sentence was required.

[20]      In respect of all six charges, however, the complainers were vulnerable young persons who were deserving of the utmost care.  Although the complainers were all entitled to expect sanctuary in the residential units, they had all been targeted by the respondent.  Each offence thus represented a gross abuse of trust:  both the trust reposed in the respondent by his employers and the trust he gained of the complainers themselves through his interactions with them in the residential units.  This gross abuse of trust had not been adequately reflected by the sentence imposed. 

[21]      Reference was made to the Sexual Offences Definitive Guideline (”the Definitive Guideline”), published by the Sentencing Council for England and Wales in December 2013 and which came into effect on 1 April 2014.  Whilst the Definitive Guideline is not applicable in Scotland, and whilst it should not be slavishly followed, it can nevertheless be used as a cross-check to highlight any areas of disparity (HM Advocate v AB, 2016 SCCR 47 at [13];  Sutherland v H.M. Advocate, 2016 SCCR 41 at [20]).  The Definitive Guideline includes a series of factors relevant to categories of harm and culpability for use in calculating a starting point in sentencing cases of rape (Definitive Guideline, page 10).  These combinations of harm and culpability generate a matrix.  The sentencer is then directed to use the corresponding starting points to reach a sentence within the appropriate category range.  Account must also be taken of the non-exhaustive list of aggravating and mitigating factors set out in the Definitive Guideline (ibid. page 11) to arrive at the final sentence. 

[22]      Using the Definitive Guideline as a cross-check, charge 7 fell into “Category 2A”:  the complainer CM was particularly vulnerable due to her personal circumstances; there was a significant degree of planning involved in the offences; and the respondent committed the offences whilst in a position of trust.  As the respondent continued to deny the offences and showed no remorse, the only real mitigating factors was the absence of any previous convictions for sexual offences and the respondent’s charity work.  Yet even these mitigating factors had to be seen against the background of the respondent having committed a catalogue of sexual offences against vulnerable young girls over a period of 11 years.  In terms of the Definitive Guideline, Category 2A offence carries a starting point of 10 years’ imprisonment, with a range of between 9 and 13 years’ imprisonment.

[23]      Albeit a cumulo sentence was imposed in respect of all six offences, the statutory maximum sentence at the time in respect of the offences in charges 1 and 2 was 2 years’ imprisonment.  In respect of charges 5, 6 and 8 the statutory maximum was 10 years’ imprisonment, the statutory maximum sentence for a contravention of section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 having been increased from 2 years to 10 years on 1 August 1997 by virtue of section 14(2) of the Crime and Punishment (Scotland) Act 1997.  It was not, however, suggested that, despite the gross breach of trust involved, the offending conduct forming any of the statutory charges was such as to warrant a sentence at or around the statutory maximum.

[24]      It was clear from the trial judge’s sentencing statement that she had identified all the factors that required a substantial custodial sentence.  The trial judge had nevertheless failed to place sufficient weight on those factors.  In particular, the resulting sentence did not adequately reflect the requirement for retribution, denunciation and particularly general deterrence given the circumstances of the respondent’s offending.

Respondent
[25]      The solicitor advocate appearing for the respondent accepted that the offences of which he had been convicted were extremely serious.  The trial judge’s sentencing statement demonstrated that she had neither taken any inappropriate matters into account nor left any appropriate matters out of account in passing the sentence of 6 years’ imprisonment.  The sentence imposed on the respondent did not fall outside the range of sentences which the trial judge could reasonably have considered appropriate.  The test in Bell was not met.  The sentence selected had not been unduly lenient.

[26]      The respondent was now almost 60 years of age and would find a custodial sentence more difficult than a younger man.  The respondent had been assessed in the CJSWR as presenting a low risk of re-offending.  Reference was also made to the respondent’s absence of analogous previous convictions and to his charitable work.  In particular the respondent had spent some 30 years volunteering as a group leader with a charity for adults with illness and disabilities.  The solicitor advocate reported that the respondent’s charity work had also on occasion brought him into contact with children and young persons.  It was accepted that this supposedly mitigating factor might possibly be seen in a less favourable light given the grooming aspects of the present offences. 

[27]      With regard to the use of the English Definitive Guideline, English guidelines should be treated with care – especially when one is not dealing with a UK statute – because of divergent sentencing powers and practices between Scotland and England and Wales.  In particular, and as noted in AB, supra, at [13], there are at present no statutorily defined sentencing purposes as is the case in England and Wales (cf section 142 of the Criminal Justice Act 2003).  English guidelines should not be applied in a rigid or mechanistic fashion (Sutherland, ibid.;  Geddes v H.M. Advocate, 2015 SCCR 230 at [18]).   

Discussion
Identifying the appropriate level of sentence – the approach
[28]      In the course of submissions both parties referred to the English Definitive Guideline.  No domestic authority was cited.  The advocate depute explained that he had been unable to find any Scottish decisions directly in point.  Beyond a suggestion from the advocate depute (unsupported by any authority) that the “baseline” sentence for offences of this type was 7 years’ imprisonment and that therefore a sentence of 6 years for offending with the aggravating features in the present case was clearly unduly lenient, he was unable to provide further assistance as to what was appropriate.  Similarly, the solicitor advocate for the respondent suggested that the appropriate range of sentence in respect of a single instance of rape was perhaps 5 to 7 years, although again this was not supported by any authority. 

[29]      The court is aware that at some point in the next 12 to 18 months the Scottish Sentencing Council (“SSC”) intends to begin research into the sentencing of sexual offences in order to determine whether a sentencing guideline should be prepared (Scottish Sentencing Council Business Plan 2015 – 2018, pp. 29 – 30).  It is important to note, however, that responsibility for determining the level of sentences remains with the court. The SSC is an advisory body.  Once a proposed sentencing guideline on sexual offences is prepared and submitted to this court by the SSC, the court may either approve or reject the proposed guideline in whole or in part, with or without modifications (Criminal Justice and Licensing (Scotland) Act 2010, section 5).

[30]      Among the purposes of issuing sentencing guidelines is the identification of a general consensus as to what is appropriate in respect of particular types of offending in particular circumstances so that then, by an application of the guideline, the court can achieve a degree of consistency which commends itself as rational and just.  Regard can of course be had to the practice in other jurisdictions but where there is no domestic guideline, either as proposed by the SCC and then approved or provided in an opinion of the court in terms of section 118(7) or section 197 of the Criminal Procedure (Scotland) Act 1995, the first resort in attempting to identify what level of penalty is generally considered appropriate to a particular sort of case should be Scottish precedent (see Scottish Power Generation Ltd v HM Advocate [2016] HCJAC 99).  In the absence of any authority having been cited by the parties, the court has undertaken its own researches into the matter.  In doing so it has focused on what it sees as the salient feature of the respondent’s offending, that it involved sexual assaults on particularly vulnerable young girls who had been placed in state institutional care for their welfare and protection.  The respondent exploited his employment and consequent position of authority to facilitate these sexual assaults, thereby abusing the position of trust in which he had been placed in respect of them. 

Sexual offences committed in abuse of a position of trust – review of authorities
[31]      HM Advocate v Cooperwhite 2013 SCCR 461 was a Crown appeal against the sentence imposed in a case of so-called “relationship rape”.  In reviewing the authorities the Lord Justice Clerk (Carloway) observed that, in the absence of sentencing guidelines available to judges, sentences in the region of 3 and a half years’ imprisonment – as in the successful Crown sentence appeal in HM Advocate v Shearer, 2003 SCCR 657 – had “undoubtedly been used by sentencers as the benchmark” in cases involving the rape of sleeping or unconscious complainers (Cooperwhite at [19]).  Be that as it may, a review of the case law involving rape and other sexual offences committed either in institutional settings or in other circumstances in which the accused was in a position of trust vis-à-vis the complainers discloses that significantly longer sentences have been imposed by the courts in such circumstances.  In particular, sexual crimes involving children are particularly odious.  Sexual abuse of children and other vulnerable persons is not acceptable in modern society.  It is the responsibility of the courts to reflect that understanding (WA v H.M. Advocate, 2016 SCCR 51 at [24]).  

[32]      In Blaney v HM Advocate, 2001 SCCR 858 the appellant pleaded guilty in the High Court to two charges of lewd and libidinous practices and behaviour committed on various occasions between 1969 and 1972 against two brothers aged between 9 and 12, and 7 and 10 respectively.  The offences, which were described as involving considerable indecency and which had a lasting effect on the elder complainer, were committed by the appellant at a children’s home, Nazareth House, run by a religious order.  The appellant, who had himself been a resident, had returned to the children’s home as a helper and was thus in a position of trust and authority.  The appellant’s appeal against the sentence of 6 years’ imprisonment was refused (at [2]). 

[33]      The appellant in McBrearty v HM Advocate, 2004 JC 122 was convicted after trial at the High Court of two charges of rape and six charges of lewd and libidinous practices committed between 1961 and 1968 against three complainers.  The offences were all committed at Quarrier’s Homes, Bridge of Weir, a largely self-contained community that cared for orphaned children or children whose families were unwilling or unable to look after them.  The appellant and his wife had been the house parents in one of the accommodation units.  The complainers were all young girls, aged between 10 and 17, resident in the appellant’s unit.  The first charge of rape involved the appellant entering the bed of the first complainer, placing his hand over her mouth and raping her.  The appellant raped the first complainer on various occasions over a period of over three years.  The second charge of rape involved the appellant removing the second complainer from her bed, forcing her into a bathroom and raping her.  The second complainer was also raped on various occasions over a period of six and a half years.  The charges of lewd and libidinous practices committed against the three complainers involved, inter alia, oral penetration and masturbation to the emission of semen.  The trial judge imposed a cumulo sentence of 12 years’ imprisonment.  The appellant’s appeal against conviction having been refused on 13 April 2004 (McBrearty, ibid. at [63]), the court continued the appeal on the question of sentence.  On 2 July 2004 the court sustained the appeal against sentence, quashed the sentence of 12 years’ imprisonment and substituted a sentence of 10 years’ imprisonment. 

[34]      In Baillie v HM Advocate, 2007 JC 161 the appellant, a former general medical practitioner, pleaded guilty in the High Court to 17 charges on the indictment against him.  The complainers were all young women who had attended his surgery as patients over a 14 year period.  Each of the charges libelled assault upon the patient (in some cases on several occasions) involving acts of indecency.  The offences consisted of inappropriate and improper intimate examinations of the patients, including instances of digital penetration of their private parts and the shaving of their pubic hair, as well as the making of indecent remarks to them.  The appellant acknowledged that the charges comprised a very serious breach of trust over a long period of time.  The sentence of 9 years’ imprisonment (discounted from a headline sentence of 12 years) was quashed on appeal, and a sentence of 6 years and 9 months’ imprisonment (discounted from a headline sentence of 9 years) was substituted (at [24]).

[35]      In McKenna v HM Advocate, 2008 SCCR 702 the appellant, aged 83, had been an instructor at a residential school run by a religious order.  He was convicted after trial at the High Court of historic charges of indecent assault involving digital penetration of the hinder parts of one complainer;  attempted sodomy of another;  and lewd and libidinous practices towards a third complainer.  The three offences were committed between 1976 and 1981 against three boys, aged between 9 and 12, who had been pupils at the school.  The appellant was sentenced to 2 years’ imprisonment.  His appeal against conviction having been refused on 18 June 2008 (McKenna, ibid. at [20]), the court continued the appeal on the question of sentence.  On 18 September 2008 the court sustained the appeal against sentence, quashed the sentence of 2 years’ imprisonment and substituted a sentence of 1 year’s imprisonment.  We note, however, that in the recent decision of HM Advocate v SSK, 2016 SCCR 74 the Lord Justice General observed that, in the modern era, sentences of at least 4 years’ imprisonment would be appropriate for lewd and libidinous practices involving digital penetration or attempted sodomy committed whilst in a position of trust (at [24]).  It is clearly the case that, notwithstanding the age of the appellant in McKenna, such a sentence would today be regarded as unduly lenient. 

[36]      In George v HM Advocate, 2011 SCCR 568 the appellant was convicted after trial at the High Court of 18 charges of the sexual and physical abuse of children at Kerelaw School in Ayrshire, a residential school where he was employed as an art teacher.  The pupils were all vulnerable young people:  some had family problems and no home to go to;  some were from other residential homes;  and others had been involved in criminal behaviour.  The appellant sometimes assumed the role of carer in the pupils’ living quarters, depending on staffing levels.  The details of the 18 charges are set out in the opinion of the court in the appellant’s initial appeal against conviction ([2011] HCJAC 33 at [1]).  The offences were committed against male pupils during the late 1970s and 1980s.  They comprised, inter alia, the appellant compelling a pupil to handle his private parts, masturbation, oral penetration and attempted sodomy (charge 4);  breach of the peace by exposing his private parts (charges 5 and 13);  indecent assault involving oral penetration (charges 8, 21 and 25) and oral penetration to the point of ejaculation (charge 12);  lewd and libidinous practices by making indecent remarks (charge 10);  and various charges of assault including slaps and punches to pupils’ heads, legs and bodies;  twisting pupils’ arms up their backs;  gouging at their eyes, and pulling their hair.  The fear, pain and humiliation suffered by some of the complainers had affected them throughout their adult lives ([2011] HCJAC 33 at [8]).

[37]      The appellant was sentenced to 10 years’ imprisonment.  The sentence was upheld on appeal, albeit the court found there to have been an infringement of the appellant’s Article 6 rights in respect of the time taken to conclude the appeal (2011 SCCR 568 at [8] to [10]).  In particular, the court noted that the sentence of 10 years was an appropriate reflection of the gravity of the appellant’s offences, of the need to protect the public, and of the need to deter others from offending in the same way (at [9]).

[38]      In Murray v HM Advocate, 2013 SCCR 88 the appellant pleaded guilty to a charge of sexual assault by penetration contrary to section 2 of the Sexual Offences (Scotland) Act 2009, to a charge of sexual assault contrary to section 3 of the 2009 Act, and to a charge of rape contrary to section 1 of the 2009 Act.  The three complainers, aged 84, 74 and 65 respectively, each suffered from severe dementia.  They were residents in the care home in which the appellant was employed as a care worker.  The appellant chose his victims because of their problems in communicating.  The sentencing judge imposed a cumulo sentence of 7 years’ imprisonment, discounted from 9 years to reflect the appellant’s plea by way of section 76 procedure.  The appellant appealed against the sentence on the sole ground that a supposedly insufficient discount had been allowed.  This court (a bench comprising the Lord Justice General, the Lord Justice Clerk, and Lady Paton) refused the appeal, quashed the sentence of 7 years as unduly lenient and substituted a sentence of 9 years and 6 months’ imprisonment, discounted from a headline sentence of 12 years (per the Lord Justice General (Gill) delivering the leading opinion at [27] to [29], the Lord Justice Clerk and Lady Paton concurring).  In so doing, the Lord Justice General referred to the vile nature of the crimes that involved a grievous abuse of trust; his Lordship also noted that the appellant committed the offences against helpless women whom it was his duty to treat with care and respect (ibid. at [27]).  

[39]      The most recent decision of relevance is that of Newman v HM Advocate [2016] HCJA 46, 2016 SCL 602.  The appellant had been employed as a care worker in a children’s home.  He was convicted after trial at the High Court of a series of sexual offences committed against boys residing in the home from the early to mid-1990s.  In particular, the 10 offences of which the appellant was convicted comprised lewd and libidinous practices;  indecent assault;  attempted sodomy;  and sodomy.  The offences of lewd and libidinous practices and indecent assault involved, inter alia, handling the complainers’ private parts, masturbating them, causing them to masturbate him, and oral penetration.  The appellant was sentenced to 13 years’ imprisonment, which was not challenged on appeal.  His seven grounds of appeal against conviction were all refused by this court (Newman, ibid. at [6], [12], [14] to [15], [18], [20] to [21], [24] to [25], and [29] to [30]). 

Ranges of sentence for such offences
[40]      Aside from the decision in McKenna, supra, the authorities appear to suggest that the appropriate ranges of sentence for sexual offences committed whilst in a position of trust and/or authority are as follows.  For offences comprising historic charges of lewd and libidinous practices involving, for example, digital penetration or attempted sodomy, or offences involving indecent assault over a prolonged period of time, headline sentences of at least 4 years’ imprisonment (and possibly more) up to headline sentences in the region of 9 years will be appropriate (SSK, supra, at [24];  Baillie, supra, at [22] to [24]).  In particular, the degree of abuse, including the nature and extent of any inappropriate penetration, will be relevant to sentence, as will the number of victims, the number of occasions on which the abuse occurred, and the length of the period over which it occurred (Baillie, ibid. at [17]).  The degree of harm, including the psychological harm, caused by the abuse is relevant.  A further important consideration is the violation of the complainer’s physical and psychological integrity (ibid. at [18]).

[41]      For offences involving the rape of a complainer, or other penetrative sexual abuse of several complainers, in respect of whom the offender was in a position of trust or authority, headline sentences in the region of 8 to 10 years may be appropriate (McBrearty, supra;  George, supra).  The breach of trust involved, the duration of the offending, and the number of victims may, however, be such as to warrant a headline sentence in excess of 10 years (Murray, supra;  Newman, supra).  Such cases would include, but are not limited to, the offender having committed the offences whilst being employed as a teacher, social worker, care worker, or his having held any other position of authority within an institutional and/or educational setting.  The same considerations regarding the degree of physical and psychological harm and the violation of the complainer’s physical and psychological integrity apply in such cases.

[42]      We are reinforced in this view by considering recent sentencing statements from the High Court involving rape and other sexual abuse committed in institutional settings.  Reference can, for example, be made to HM Advocate v Ian Samson, High Court of Justiciary, 21 August 2013, Lady Scott (cumulo sentence of 14 years’ imprisonment imposed on the 72 year old offender following his conviction of 22 offences involving the sexual abuse and rape of 12 children over a period of over 30 years at loci including a boys’ hostel, a children’s home, and his own shop where he employed children);  and to HM Advocate v David Robertson, High Court of Justiciary, 23 June 2014, Lord Boyd of Duncansby (extended sentence of 25 years and 4 months, comprising a custodial term of 15 years and 4 months and an extension period of 10 years imposed in respect of 25 charges of sexual offences committed against 16 children and vulnerable adults between 1974 and 2011 including three convictions for rape;  the subsequent appeal against the sentence being refused by this court on 15 March 2016).

The Definitive Guideline
[43]      As the Lord Justice General observed when delivering the opinion of the court in Scottish Power Generation Ltd v HM Advocate at paragraph [35] the court has, on several occasions encouraged sentencers in appropriate cases to “have regard to” the current guidelines issued by the Sentencing Council of England and Wales with a view to providing a cross check on the conclusion that otherwise might be reached, either instinctively or by way of a more structured process of reference to available Scottish precedent.  In his submissions Mr Scott urged care when giving consideration to English guidelines;  one could not just read across from England to Scotland, there were differences as between apparently similar offences and it could not be assumed that sentencing policy or sentencing objectives were the same.  However, Mr Scott did not go the distance of saying that the Definitive Guideline was entirely irrelevant or that the advocate depute’s application steps of one and two of the Definitive Guideline to the facts of the present case had been wrong.  We turn then to that exercise.

[44]      Step one is to determine the offence categories by reference to harm and to culpability.  Agreeing with the advocate depute, we see the feature of intrusion into CM’s room as equivalent to uninvited entry into the victim’s and therefore together with the feature of the vulnerability of all the complainer as bringing charge 7 into category 2 in respect of harm and the features of significant degree of planning and abuse of trust into Category A in respect of culpability.  Step two begins by noting the starting point and category range which result from step one.  For a Category 2A offence the Definitive Guideline provides a starting point of 10 years’ custody and a category range of 9 to 13 years.  Step two then allows for an upward or downward adjustment from the starting point by reference to, on the one hand, aggravating factors and, on the other, mitigating factors.  In our opinion the factors of specific targeting of a particularly vulnerable victim, ejaculation and the location of the offence are relevant to aggravation in the present case while, subject to what follows, the absence of relevant or recent convictions and previously good character can be seen as mitigating factors.  

[45]      We are conscious, when carrying out such an exercise as is envisaged by the Definitive Guideline, of the danger of double-counting and in the present case giving weight to the aggravating factors of vulnerability and location would seem to have that result given the factors relied on as bringing the offence into Category 2 in respect of harm.  On the other hand, we are not persuaded in the circumstances of this case that absence of previous convictions and supposed previous good character weigh very heavily on the side of mitigation where the jury’s verdict indicates a prolonged history of previously undisclosed significant offending. 

[46]      The Definitive Guideline involves a further seven steps but none look to be relevant for the purposes of arriving at what the Guideline would indicate to be the appropriate sentence in respect of an offence involving one incident having the features libelled in charge 7. In the present case CM gave evidence of having been raped on four occasions. The appellant was of course also convicted of five statutory offences.

Decision
[47]      The trial judge imposed a cumulo sentence in respect of the respondent’s conviction on the charges under section 5 of the 1976 Act, of the four charges under section 6 of the 1995 Act, and of the single charge of rape at common law.  In cases where more than one statutory offence is libelled it has been held to be desirable that on conviction, rather than imposing a cumulo sentence, the court should impose a sentence on each of the charges (Seaton v Allan, 1973 JC 24 at 31, per the Lord Justice Clerk (Wheatley)).  In Caringi v HM Advocate, 1989 SCCR 223 it was observed by a Bench of five judges that whether the charges are statutory charges or common law charges, courts should be careful not to impose a cumulo sentence if there is any risk of problems occurring in a subsequent appeal (at 228, per the Lord Justice Clerk (Ross) delivering the opinion of the court).  The most obvious sort of such problems is where convictions on some charges are quashed where convictions on other charges are not.  That is not a situation which has arisen here.  The task of this court then is to consider the sentence as imposed by the trial judge and to decide whether it is sustainable (Murray supra at paragraph [32];  see also McGill v HM Advocate, 2014 SCCR 46 the Lord Justice Clerk (Carloway) at paragraph [13]).  This involves the appellate court revisiting the sentencing exercise and determining what would have been appropriate and reasonable, taking into account all material factors (McGill ibid.).

[48]      As the trial judge observed in her sentencing remarks, the respondent committed an appalling series of offences involving the predatory sexual abuse of four vulnerable teenaged girls.  The respondent was in a position of trust in relation to each complainer and the offences comprised a gross breach of that trust.  Although the respondent had no analogous previous convictions, he has shown no remorse and continues to deny responsibility for the offences.  The trial judge who saw and heard the four complainers and the respondent give evidence must be accorded due deference but, in light of the review of the domestic authorities, and in all the circumstances of the case, the court is bound to hold that the cumulo sentence of 6 years falls outside the range of sentences reasonably open to the trial judge and is unduly lenient.  A cumulo sentence of 10 years’ imprisonment would, in our opinion, be appropriate.  

[49]      In arriving at the sentence of 10 years’ imprisonment we have been guided by the precedents to which we have referred.  We have found three of these to be of particular assistance.  In McBrearty the appellant was in a similar position of care and trust as the respondent in the present case.  The level of culpability might be said to have been a little higher in that there were two separate complainers speaking to rape on various occasions over a period of years in addition to other charges of indecency involving other complainers.  That might point to a sentence of less than 10 years in the present case.  But against that there is the decision in George.  There too the appellant was in a similar position of trust to that of the present respondent.  Admittedly, he was convicted of 18 charges in respect of 11 complainers but at least eight of these charges were for relatively minor acts of physical violence.  Overall, we would regard the level of culpability in George as having been no higher than that in the present case.  There a sentence of 10 years imprisonment was appealed without success.  In Newman the appellant was once again in a similar position of care and trust.  There were two charges of unnatural carnal connection with two complainers, each event occurring on a single occasion.  In addition there were charges of indecency involving four other complainers.  This would suggest a level of culpability very similar to that in the present case.  A sentence of 13 years was imposed but not challenged on appeal.  If the Definitive Guideline is had regard to as a check, a sentence of 10 years imprisonment in the circumstances of the present case must be regarded as moderate, given the repeated incidents which were the subject of charge 7 and the other convictions. 

[50]      We shall accordingly quash the sentence appealed against and substitute a sentence of 10 years’ imprisonment, backdated to commence from 27 April 2016, being the date selected by the trial judge.