Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2023/2023_HCJAC_3.html
Cite as: [2023] HCJAC 3, 2023 SLT 232, 2023 GWD 5-62, [2023] ScotHC HCJAC_3, 2023 JC 68, 2023 SCCR 97

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2023] HCJAC 3

HCA/2022/000291/XC

Lord Justice Clerk

Lord Matthews

Lord Boyd of Duncansby

OPINION OF THE COURT

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

CROWN APPEAL AGAINST SENTENCE

HIS MAJESTY'S ADVOCATE

Appellant

against

Respondent

Appellant: Lord Advocate KC, AD, Gill; the Crown Agent

Respondent: Gravelle, Sol Adv; Beltrami & Co, Glasgow

7 February 2023

[1]

This is an appeal by the Crown alleging that a sentence of 4 years imprisonment for

rape was unduly lenient.

Background

[2]

MG is now 39. He is a foreign national who had been granted indefinite leave to

remain in the UK. He is married with 3 children. He was convicted of raping the

complainer in the following terms

"did assault [the complainer] pretend to her that the public toilets in the hotel were

out of order and induce her to go with you to your room and there an intoxicating

substance caused her to lapse in and out of consciousness and rendered her unable to

control her movements and incapable of giving or withholding her consent,

manoeuvre her into various positions on a bed, remove her trousers and underwear,

remove your own clothing, forcibly penetrate her mouth with your penis, insert your

fingers into her anus, remove her top, lie on top of her, kiss and bite her breasts, rub

your penis against her body, remove her tampon, penetrate her vagina with your

penis, turn her onto her stomach, lick and bite her buttocks, place her hand on your

penis, induce her to masturbate your penis and you did thus rape her, to her injury:

CONTRARY to Section 1 of the Sexual Offences (Scotland) Act 2009."

Circumstances of offence

[3]

At the time of the offence, MG was a 35 year old General Practitioner. The

complainer was 19 years old. They met through the Tinder dating platform. MG, who was

calling himself by a name other than his given one, said he was 23 years old and a junior

doctor. After a few weeks of messaging of a non-sexual variety, they agreed to meet up at a

hotel in Stirling, where the complainer lived.

[4]

On 8 December 2018, they met as arranged in the bar of the hotel, where MG had in

fact booked a room. After drinking and chatting over the evening, during which time the

complainer had about 4 gins, she was about to arrange a taxi to go home. She indicated that

she needed to go to the bathroom. MG told her that the toilets in the bar were closed and

suggested she use the toilet in his room. She agreed. Up to this point there had been no

physical contact between them. The complainer was not particularly attracted to MG.

When she entered the room they kissed and she went to the toilet. When she came out of

the toilet MG gave her a mug and told her it contained pink gin . She found it very strong.

MG had purchased the alcohol before arriving at the hotel, having previously ascertained

what she liked to drink. Whilst she was in the toilet he took a Viagra. They talked for a

while, but the complainer began to feel very tired and heavy, as if she wanted to sleep.

[5]

Over a period of around 3 hours, the complainer lapsed in and out of consciousness

whilst MG raped her in the manner described in the charge. Eventually she was able to

stand up, (albeit with some difficulty) and went into the toilet, taking her phone with her.

She messaged two friends but neither replied. She came out of the toilet, managed to get

dressed and leave the room.

[6]

CCTV footage seemed to show her leaving the hotel quickly and without her shoes

on. She sat on the steps to put her shoes on. The hotel night porters found her sitting

outside the front door crying, upset, distraught, not willing to come back into the hotel and

asking for directions to a cash machine. At least one of the porters told police that she

seemed drunk, thus supporting her account of incapacity. When she eventually returned

home, she contacted the police. On examination she was found to have recent injuries, being

a scratch to her lower eyelid, a 6cm abrasion to her left buttock and on the front right thigh a

fingertip bruise.

Submissions for the Crown

[7]

The Lord Advocate submitted that the test in HM Advocate v Bell 1995 SCCR 244 was

met: the sentence falls outwith the range of sentences which a judge at first instance,

applying his mind to all the relevant factors, could reasonably have considered appropriate.

The sentence failed to meet the objectives of protection of the public, punishment and

expressing disapproval of the offending behaviour. It did not reflect the gravity of the

offence, the degree of premeditation, the complainer's vulnerability from being under the

influence of an intoxicating substance, and the prolonged nature of the incident.

[8]

Having regard in particular to the Sentencing Council for England and Wales

Definitive Guideline for cases of rape, a fair and appropriate sentence in this case would

have been imprisonment in the range of 7 to 8 years bearing in mind:

that this was a conviction after trial,

the significant element of duplicity involved,

the significant element of pre-planning involved,

the age and professional position of the respondent and

the age and vulnerability of the complainer.

[9]

According to the Definitive Guideline the case would fall into Harm Category 2 by

virtue of (a) the offence being a "sustained incident"; and (b) the complainer being

"particularly vulnerable due to personal circumstances". A "sustained incident" can refer

"to a single offence set in its surrounding circumstances or context; but it can also refer to a

single episode of some duration within which more than one assault might take place"(R v

KC [2019] 4 WLR 127 para 32). As a result of an intoxicating substance, for the duration of

the offence, the Complainer lapsed in and out of consciousness. The Complainer's

circumstances were therefore such as to render her "particularly vulnerable to even greater

harm than is likely to be suffered by other victims of a similar offence" (R v Saunders (Joey)

[2022] 2 Cr App R (S) 36 para 13; see also Attorney General's Reference (R v BN)

[2022] 1 Cr App R (S) 37 para 25).

Submissions for MG

[10]

There was no evidence that MG had brought pink gin and Viagra with the prior

intention of committing a sexual offence. His evidence was that he had brought those items

in the hope of facilitating a consensual sexual encounter. There was a significant difference

between acts and behaviour designed to facilitate a consensual sexual encounter, and a

course of conduct with the primary objective of committing a rape. The public are protected

by the deprivation of the appellant's liberty for a period of four years. The impact of

sentence is punitive in terms of the length of sentence and the consequences of

imprisonment. The severity of the punishment is not to be measured exclusively in terms of

the length of sentence. MG will be the subject of notification requirements for an indefinite

period upon his release, with no right of review thereof within fifteen years. He will be

unable to resume practice as a General Practitioner.

Analysis and decision

[11]

The trial judge explains in his report the process by which he arrived at the sentence

of 4 years. It appears that he considered what would be the appropriate sentence for the

offence of rape of which the accused was convicted, by which he reached what he described

as a "headline sentence" of 5 years. He then reduced that by one year to reflect what he

considered to be the personal mitigation available to the accused, in the form of his hitherto

good character, and the loss of his profession.

[12]

The Scottish Sentencing Council Guideline on the Sentencing Process makes it clear

that the headline sentence is that arrived after consideration of all the circumstances of the

case, including both aggravating and mitigating factors. If, as he maintained, the figure of

5 years was selected by reference to sentences in other, unspecified, cases, the headline

sentence in those cases would already have reflected any mitigation which existed. There is

therefore a risk of double counting in the trial judge's approach. However, the appeal is not

based on error of law, and the trial judge has not been given an opportunity to comment on

this matter. We would thus merely observe that it appears that he has not followed the

approach set out in the Sentencing Process Guideline.

[13]

We consider that a sentence of 4 years for the offence in question is undoubtedly a

lenient one: the question is whether it meets the test in Bell and may be considered to be

unduly lenient. Examining the factors relied upon by the Crown as indicating the gravity of

the offence and which it is said should be taken into account in selecting the appropriate

sentence, we find that some of these are of no, or minimal, relevance. For example, the fact

that this was a conviction after trial means that no discount should be applied, but it does

not conversely mean that the sentence is increased: there is no punishment for going to trial.

The professional position of the respondent has no bearing on the offence, which was

committed in a private capacity, and through contact made on Tinder not through work.

The appellant is somewhat older than the complainer but there is nothing in the

circumstances which makes age a particularly relevant factor. That leaves the element of

duplicity, the alleged significant element of pre-planning, and the complainer's vulnerability

through intoxication. We accept that there was an element of duplicity, in that the

respondent lied about his identity, his age, and apparently about the closure of the bar

toilets, which may be seen as a manoeuvre to entice the complainer to his room. We are not

satisfied that it is correct to say that there was a significant element of pre-planning for the

commission of an offence as opposed to taking steps to facilitate the possibility of a sexual

encounter: as the trial judge observed in his report,

"There was no evidence that the respondent had brought pink gin and Viagra with

the prior intention of committing a sexual offence. His evidence was that he had

brought those items in the hope of facilitating a consensual sexual encounter, and

there was no evidence to indicate the opposite, albeit that that is not how matters

turned out. The respondent gave evidence that this had not been his first Tinder

date and that some of his previous dates had ended with consensual sexual

intercourse."

[14]

We see no reason not to accept the trial judge's assessment of matters. As to the

vulnerability of the complainer, we accept that as a result of her condition the complainer

would be more vulnerable to being taken advantage of, and less able to assert herself than

she might otherwise have been. We question, however, whether it is exactly correct to say,

as the Crown submitted, that her circumstances were therefore such as to render her

"particularly vulnerable to even greater harm than is likely to be suffered by other victims of

a similar offence". There is nothing in the circumstances to suggest that she was vulnerable

to greater harm from the offence than a non-intoxicated person would be, and it is notable

that the full passage in Saunders from which the extract in this submission was taken, makes

it clear that it is not referring to the vulnerability to exploitation that arises from intoxication,

but from the increased effect that an offence might have because of particular vulnerability

from, for example, pre-existing mental health issues. We note that in the Definitive

Guideline a factor which may place a case in Category 2 rather than Category 3 is that the

"Victim is particularly vulnerable due to personal circumstances". It seems that there may

be a degree of debate in England as to precisely what this means: Saunders appears to take

one approach, whereas a different approach may be identified in Attorney General's Reference

(R v BN). Another factor which is listed as taking a case into Category 2 as opposed to 3 is

"Prolonged detention/sustained incident". We note that the quotation from R v KC

contained within the Crown's written submissions is incorrect: it does not say that a

"sustained incident" can refer "to a single offence set in its surrounding circumstances or

context; but it can also refer to a single episode of some duration within which more than

one assault might take place": it says that an "incident" may refer to a single episode of

some duration within which more than one assault might take place. Whether an offence

may be classified as a "sustained incident" seems to us, on the authorities, to be a more

nuanced question than one determined merely on the duration of the event. There are cases

where an event of relatively short duration has been considered a "sustained incident" but

in those cases there appears generally to have been another factor, involving elements of

abduction or restraint. So for example, in R v Dogra [2019] 2 Cr App R (S), a rape which

lasted about 20-22 minutes was considered sustained and meriting a Category 2

classification when it was preceded by a protracted pursuit of the victim, who was "perhaps

even hunted down", and also dragged from the street into some bushes. In R v Mamliga

[2018] EWCA Crim 515 an attack lasting about 25 minutes was viewed as sustained where

the complainer had her hands tied behind her back, a towel forced into her mouth and her

face pushed into a pillow to stop her calling out. Her ankles were then tied together, and

both her hands and legs bound with shoelaces brought for this purpose to the scene. All of

this is consistent with the approach in R v KC, where it was noted (para 38) that:

"we draw support for our conclusion from the fact that the expression "sustained

incident" is a part of "prolonged detention/sustained incident" and the two phrases

are intended to bear some common characteristics. In the case of prolonged

detention a child might be prevented from leaving for a period of time during which

one or more assaults occur. In such a case the increased harm factor is because there

was a wider incident of "detention" bordered by a start point (restraint) and an end

point (release). During the period of detention various assaults might occur. The

facts of Mamaliga (ibid) reflect such a situation. The concept of a `sustained incident'

is clearly intended to be similar or analogous to a `prolonged detention'".

[15]

In having regard to the Definitive Guideline on rape applicable in England and

Wales, it is necessary to recognise that, as has often been noted, this should be used as a

cross check and should not be the subject of direct and unthinking application. In

HM Advocate v Ian Milligan [2015] HCJAC 84 the court stated (para 5):

"We caution against too rigid an application of the English sentencing guidelines.

They are not to be applied even in England in mechanistic fashion and it must be

borne in mind that those guidelines in England are to be understood in a different

sentencing regime from the Scottish sentencing regime........ the Scottish approach

to sentencing is rather less formulaic than the English sentencing guidelines. "

[16]

Using the Guideline as a cross-check, we consider that it would not be appropriate to

classify it as other than in category 3B, which has a range of 4-7 years, and a starting point of

5 years. On that basis the sentence selected by the trial judge can be seen to be lenient, but

not excessively so, and the appeal must fail.