Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2022/2022_HCJAC_35.html
Cite as: 2022 GWD 30-447, 2022 SCCR 265, [2022] HCJAC 35, [2022] ScotHC HCJAC_35

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2022] HCJAC 35

HCA/2022/000126/XC

Lord Woolman

Lord Boyd

OPINION OF THE COURT

delivered by LORD WOOLMAN

in

Note of Appeal against Sentence

by

LEE IBBOTSON

Appellant

against

HER MAJESTY'S ADVOCATE

Respondent

Appellant: S Collins, Sol Adv for Collins & Co on behalf of Wilson McLeod Solicitors

Respondent: M Way A.D, Crown Agent

8 September 2022

[1]

The appellant has been convicted of two rapes against different complainers. He

committed the first crime on 7 July 2017. He committed the second one on 25 December

2019, when he was on bail for the earlier incident.

[2]

In respect of the first crime, he received a sentence of 5 years imprisonment. It was

backdated to 9 October 2020, which was the date of conviction. In respect of the second

2

crime, he was convicted on 22 February 2022. The trial judge imposed a sentence of 6 years

imprisonment and directed that it should be served consecutively to the earlier sentence.

[3]

In this appeal Mr Collins does not challenge the length of the second sentence.

Instead he invites the court to look at both sentences together. He submits that the cumulo

sentence of 11 years imprisonment is excessive. He contends that the second sentence

should commence on 22 February 2022.

[4]

Before proceeding to sentence, the court closely assesses the individual

circumstances of each case. That includes considering (a) any existing sentences to which

the individual is subject, and (b) the cumulo effect of consecutive sentences: see for example

Graham v HM Advocate 2019 SCCR 19, at para [57].

[5]

Approaching the matter on that basis, we conclude that the cumulo sentence is not

proportionate. The interests of justice do not require both sentences to duplicate the same

purposes of punishment, deterrence, protection of the public and rehabilitation. Further, the

punishment exceeds what could reasonably have been expected if both crimes had been put

on the same indictment: McGill v HM Advocate 1996 SCCR 35, 36.

[6]

We therefore find that there has been a miscarriage of justice. We sustain the appeal

and direct that the sentence of 6 years' imprisonment shall run from 1 September 2022.

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