Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 80

HCA/2016/000250/XC

Lord Menzies

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST SENTENCE

by

J M

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  MacConnachie;  Paterson Bell Solicitors

Respondent:  A Brown QC;  Crown Agent

19 August 2016

[1]        The appellant was convicted at Livingston High Court on 3 March 2016, after a trial lasting some four days, of a variety of offences namely charges 1, 2, 3, 5, 7 and 10 on the indictment, some as amended, all as set out by the trial judge in his report to us. 

[2]        In that report he observes, with regard to the charges involving sexual abuse of the appellant’s daughter AM, that these charges involved extremely frequent and serious sexual abuse of the complainer AM.  The abuse began when the complainer was about five years of age.  It continued until she was nearly 16.  The evidence showed that the appellant sexually abused his daughter throughout most of her childhood on a very regular basis.  In view of the persistence and gravity of the abuse the complainer’s vulnerability and the appellant’s gross breach of trust the case was an exceptionally serious one. 

[3]        The trial judge went on to comment on the grounds of appeal and observed that, to his mind, these greatly minimised the gravity of the case.  He said: 

“The reality of matters is that the appellant subjected his daughter to serious sexual abuse for most of her childhood on a very frequent basis.  I have described the nature of the abuse earlier in this report but essentially it involved removing the complainer’s clothing, touching her naked vagina, rubbing his erect penis against it and masturbating in her presence.  When the complainer was older the appellant raped her on one occasion and attempted to rape her on another.  Finally, the appellant raped another child who was his niece, the complainer in charge 5.” 

The trial judge after obtaining reports proceeded to sentence the appellant on 31 March 2016 and imposed an extended sentence of 16 years, the custodial part of which was 13 years and the extension period was three years. 

[4]        Before us today Mr MacConnachie QC submitted that while the total period of the extended sentence might perhaps not be excessive, the sentencing judge fell into error in the makeup of that sentence and he submitted that the period of 13 years as a custodial term was a severe sentence indeed and excessive in the circumstances.  He urged us, as stated in the written papers, to reduce the custodial term and thereby enable a longer extension period. 

[5]        We cannot disagree with the trial judge’s categorisation of this persistent course of offending.  The sexual abuse of the appellant’s daughter was indeed exceptionally serious in our view and as observed the appellant then went on to rape his daughter, attempted rape and then rape of the niece.  These are very serious offences and we cannot agree with the submission that the sentence was excessive or that the trial judge fell into error in the makeup as between custodial and extension periods. 

[6]        For these reasons, we shall refuse this appeal.