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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2024] HCJAC 41

HCA/2024/359/XC

Lord Doherty

Lord Matthews

Lord Armstrong

OPINION OF THE COURT

delivered by LORD DOHERTY

Crown Appeal against Sentence

HIS MAJESTY'S ADVOCATE

Appellant

against

RMG

Respondent

Appellant: P Harvey AD; Crown Agent

Respondent: D Findlay KC, V Young; John Pryde & Co (for Russells Gibson McCaffrey)

25 October 2024

Introduction

[1]

The respondent is now aged 64. He was convicted after trial of 17 charges. Three of

them (charges 14, 16 and 17) were assaults for which he was admonished. It is unnecessary

to say more about those offences because the sentences in respect of them have not been

appealed. This Crown appeal concerns the sentences imposed for the remaining 14 charges.

[2]

Charges 1 to 6 were sexual offences committed against three of the respondent's

younger cousins. Charges 1 to 3 involved the same boy, U. Charge 4 involved a female, V.

Charges 5 and 6 related to another female, W.

[3]

Charge 1 concerned lewd, libidinous and indecent practices and behaviour on one

occasion when U was aged 10 or 11. U had been asleep. The respondent woke him and

asked if he would suck his penis for 20 pence. U agreed because 20 pence was a lot of

money to him. The respondent put his penis into U's mouth. The incident finished when a

noise was heard elsewhere in the house. U asked for the 20 pence but the respondent said

he did not have any money. When U was 10 or 11 the respondent was aged between 18

and 20.

[4]

Charge 2 involved lewd, libidinous and indecent practices and behaviour on an

occasion when U was aged between 10 and 12. U was having a bath. The respondent was

also naked and was washing U. The respondent told U that he wanted to put his penis into

U's mouth. U got out of the bath and moved to the living room. The respondent's penis

was erect. U did not understand what was happening. The respondent placed his penis in

U's mouth with one hand and placed his other hand on U's head. He ejaculated into U's

mouth. The respondent was aged between 18 and 21 at the time.

[5]

Charge 3 involved an indecent assault when U was aged between 10 and 12 and the

respondent was aged between 18 and 21. They were watching a film. They were in the

same bed and both were naked. U was lying on his side and the respondent was behind

him. The respondent became aroused at the film and put his penis into U's anus. There was

no warning of that before it happened. U screamed. The respondent's penis came out. He

was angry and slapped U to the face with his hand. That caused bruising. The respondent

told U to say they had been play fighting.

[6]

Charge 4 involved lewd, indecent and libidinous practices and behaviour on

repeated occasions towards V while she was aged 14 and 15, contrary to section 5 of the

Sexual Offences (Scotland) Act 1976. The respondent was aged between 19 and 21 at the

relevant times. V spoke to being assaulted when she and the respondent were alone in the

house. He encouraged her to go to his room or into another bedroom. He suggested to her

that they do things which she now knew were foreplay but she was too young to know that

at the time. The respondent touched her clitoris and put his head down to her vagina. He

told her what to do, including taking hold of his penis and rubbing it up and down. He put

his penis into her mouth and moved her head up and down. He said it was like a lollipop

and that she should suck it. He put his hand on her head. He ejaculated into her mouth.

Something sexual happened to her almost every week. It became so routine that she

thought it was normal.

[7]

Charges 5 and 6 involved rapes of W.

[8]

W's evidence about charge 5 was that when she was 13 and visiting her aunt's house

the respondent grabbed her wrist and dragged her into a bedroom. He took her jogging

bottoms off. He pushed her onto the bed and removed her pants. He used a dishcloth or tea

towel to tie her hands behind her back. He penetrated her vagina with his fingers. He took

his trousers down, lay on top of her and penetrated her vagina with his penis. He told her

to keep her mouth shut or he was going to kill her family. He turned her over and put his

penis in her anus. Afterwards her vagina was bleeding and there was some blood from her

anus. She also had some bruising to her wrist. When W was 13 the respondent would have

been 19 or 20.

[9]

W's evidence about charge 6 was that the respondent pushed her on to a sofa. He

lifted her skirt, took her pants down, and unzipped his trousers. He put a tea towel or a

dishcloth in her mouth. She was unable to speak because of that. He lowered his boxer

shorts and put his penis inside her vagina. Then he turned her over and placed his penis in

her anus. He removed it without ejaculating. Afterwards she had bleeding from her vagina.

The trial judge does not narrate in his report the evidence as to W's age at the time of this

offence, beyond saying that both this incident and that in charge 5 "related to her

childhood". However, the latitude of charge 5 extended from W's 13th birthday until less

than 6 weeks before her 17th birthday. The respondent would have been aged between 19

and 23 at that time.

[10]

Charges 7, 8 and 9 all concerned the respondent's wife X.

[11]

Charge 7 was of assault to injury on various occasions between 1980 and 1984 when

the respondent was aged between 19 and 23. X was about 2 years younger than the

respondent. He punched and kicked her to the face and body and pulled her by the hair.

Her knees and body were bruised. This had happened every couple of weeks. She

crouched down in a ball to protect her face. After he was violent he often apologised and

said that it would not happen again. She did not leave him because she was scared of him.

There seemed to be no trigger for his behaviour. He took his anger out on her. On one

occasion he placed a large kitchen knife against her throat. The blade of the knife cut her

pinkie. Her infant son was on her knee and was screaming and X was crying.

[12]

Charge 8 involved an assault to injury in 1981 when X was pregnant. The

respondent was aged 20 at the time. They had been out and had argued. X had tried to run

away from him but he pursued her, grabbed her by the arm, and pulled her towards their

home. Once there he threw her onto a bed settee and punched her hard on the back. She

asked him to stop but he punched her 10 to 20 times. She awoke later that night in pain.

[13]

Charge 9 involved a rape in 1984 when X was 8 months pregnant. The respondent

was aged 24. They had both gone to bed for the night. The respondent wanted to have sex

but X kept saying no. He tore her pants off, forced himself on her, and placed his penis into

her vagina. She said "Stop. Stop." but he just carried on. He was inside her for about

5 minutes when he ejaculated. She was crying at the time.

[14]

Charges 10, 11, 12 and 13 involved assaults on Y, who was the respondent's partner

at the time of charge 11 and part of the period covered by charge 10; and she was his wife

during the reminder of the period covered by charge 10 and at the times of charges 12

and 13.

[15]

Charge 10 involved assaults to injury on numerous occasions over a period of

16 years between 1985 and 2001 when the respondent was aged between 25 and 41. The first

assault happened a couple of months after they began their relationship. They had argued.

The respondent pinned Y to the wall, putting his hands around her neck and pushing her

against the wall. He also pinned her to the floor. He shouted at her. He was violent

towards her on numerous occasions after that. On one of those occasions he lost his temper

and slapped her face while she had a baby in her arms. On another occasion he assaulted

her by poking a finger into her eye. He head-butted her forehead a few days before they got

married. On another occasion he threw a screwdriver at her, striking her on the body. On a

further occasion he threw a mug at her. Y's evidence was that he punched her each week.

Sometimes he would push or slap her for small things, such as if she did not agree with him

or had folded his clothes incorrectly. She remembered having quite a few black eyes and

bruises.

[16]

Charge 11 involved an assault to injury in 1987 when the respondent was aged 26

or 27. He attacked Y by punching her and hitting her. She fell to the floor. He continued to

hit her whilst she was on the floor. He kicked her "like a football" on her legs, stomach and

thigh. She managed to get up. She punched him in the face and slapped him. He dragged

her by the hair from the kitchen into the bathroom. He leaned her over the bath and held a

kitchen knife to her face, saying "I'm not going to have you bleeding all over the place". He

put the knife into the corners her mouth, causing a small amount of bleeding. He then

pulled her back from the bath and threw her down "like a piece of rubbish".

[17]

Charge 12 involved an assault to injury in 1991 when the respondent was 30 or 31.

Y was pregnant. He punched her eye, giving her a black eye.

[18]

Charge 13 involved an assault to injury. The respondent had been shouting at Y.

She fled from the house but he pursued her. He caught her and put her in a bear hug, then

grabbed her by the arm. She bit his thumb in an attempt to break free. He bit her ear

causing it to bleed. It was painful. He said "I'm sorry. I did not mean to. But you hit me".

[19]

Charge 15 related to an assault to injury of the respondent's daughter Z when she

was aged 7 or 8 and the respondent was about 33 or 34. He punched her in the abdomen, as

a result of which she could not catch her breath. Her mother took her to hospital to be

checked over.

[20]

At the trial the respondent denied all of the sexual offending. He accepted

responsibility for some, but not all, of the physical assaults. After conviction he persisted in

denying sexual offending and he continued to minimise his violent non-sexual offending.

His only previous conviction had been in 1979, a summary conviction for theft for which he

was sentenced to 60 days' detention. The plea in mitigation highlighted the lack of

analogous previous convictions; the fact that the sexual offences were said to have been

committed 40 to 45 years ago; and that more than 20 years had passed since the last violent

offence. He had been in a stable relationship with his current partner, who stood by him, for

19 years; and he had held down a responsible job up to the date of his remand. He suffers

from ill-health, namely heart disease (for which he takes medication) and chronic

obstructive pulmonary disease (for which he uses an inhaler when required). Neither of

those conditions had prevented him from working.

[21]

The judge sentenced the respondent to an in cumulo sentence of 8 years'

imprisonment for the sexual offences (charges 1, 2, 3, 4, 5, 6 and 9) backdated to 23 May

2024. He also sentenced him to an in cumulo sentence of 3 years' imprisonment for

charges 7, 8, 10, 11, 12, 13 and 15, which sentence he made concurrent to the 8 year sentence.

[22]

The Crown appeals on the ground that the sentences are unduly lenient.

The appeal report

[23]

In his report the judge explained:

"[108] ... I do not accept that I `gave the impression that' [the respondent] had

committed the offences `for free' as is suggested at paragraph 14 of the Note of

Appeal. These were discrete - non-sexual - parts of his course of conduct/abuse and

treated by me as such.

...

[111] ... I accepted what I had heard from senior counsel in submission namely that

[the respondent's] circumstances had changed. The last of these offences had

occurred over 20 years ago. There was nothing in the criminal justice social work

report, his 1979 conviction for theft or in the case before me which indicated that [the

respondent] had more recent offending. While it is true that he denied the major

aspects of his offending, the sentence imposed (8 years) in part reflected the age of

the accused when his initial offending occurred (18 at the initial timeframe in

charges 1, 2 and 3; aged 20 in charges 4, 5, 6 and 7; aged 21 at the start of charge 8

but 63 at the time of sentence).

[112] I took into account what was said on page 10 of the CJSWR that `[The

respondent's] final risk category for sexual reconviction is of Low Risk...'

[113] Here his offending seems to have been within a familial setting, over 20 years

ago in circumstances where, at sentence, he had been married for 19 years and had

been in stable employment for 25...

...

[115] Reflecting on the above factors a determinative custodial sentence of 8 years

seemed fair and proportionate while having regard to the gravity of his sustained

offending and to the consequences to the complainers while also reflecting the age of

the offences, the age then and now of the accused, his lack of record and his current

risk.

[116] I had considered ordering that the 4 (sic) years sentence imposed in respect of

charges 7, 8, 10, 11, 12, 13 and 14 (sic) be served consecutively but decided against

doing so. I took the view that the accused's behaviour (sexual and non-sexual)

towards his family was a course of conduct and that to order a consecutive sentence

may have been disproportionate.

[117] Before closing, I should mention that I have read the draft sentencing

guidelines promulgated in July 2024 and the Crown appeal in HMA v AP

[2024] HCJAC 31.

[118] In AP a sentence of 5 years was increased to 8 in a case which, it seems, had

involved a younger respondent at the time of sentence (I do not see that his age is

specified); the respondent there had been convicted of two rapes and a sexual

assault; the respondent was assessed as being at a medium risk of reoffending; one

of the rapes was committed while on bail; each charge had an aggravation in terms

of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 and the

respondent had a prior conviction for domestic abuse.

[119] Having regard to the factors outlined at paras [96] to [116] above, [the

respondent's] lack of record, [his] age on release and his obligation to comply with

the notification requirements for the rest of his life, I imposed a measured sentence

intended to fulfil sentencing purposes to include the protection of the public,

punishment, rehabilitation and society's disapproval of this sexual and non-sexual

domestic offending."

Submissions for the Crown

[24]

The 8 year sentence for the sexual offences was unduly lenient. Charges 1 to 6 all

involved penile penetration against children or, possibly in relation to charge 6, against a

female who was 16. Charge 4 was particularly serious because there was almost weekly oral

penetration over a period of about 2 years. In charge 5 the complainer had been threatened,

and in both that charge and charge 6 significant force had been used. In each of these six

charges the respondent had, as an older relative, been at least to some degree in a position of

trust. Reference was made to HM Advocate v Collins 2017 JC 99, paras [41] - [42]. The victim

statements from U and V both indicated that they had suffered serious emotional and

psychological consequences. The rape of X had been aggravated because of her pregnancy

at the time. The judge had not followed the approach outlined in HM Advocate v

Fergusson 2024 SLT 573. An in cumulo sentence for charges 1 to 6 and charge 9 ought to have

been significantly higher than 8 years, even allowing for the respondent's youth at the time

of their commission, his ill-health, and his pro-social life for more than 20 years.

[25]

The 3-year sentence for the assaults of his partners and the assault of his daughter

was also unduly lenient. While the assaults were all to injury with none of them causing

severe injury, the partner assaults were sustained courses of domestic abuse covering a

period of about 20 years. Attacks were frequent. On two occasions a knife was pressed

against the victim. The violence included punching, biting, kicking, head-butting, hair

pulling, eye poking, and compressing of the throat. The victims were pregnant at the times

of the assaults in charges 8 and 12. The victim statements from X and Y pointed to serious

emotional and psychological effects, and Y also attributed her fibromyalgia to the trauma

she suffered. The sentence had been made concurrent with the result that there was in fact

no punishment for these offences. In that regard the judge had committed the error

identified in McDade v HM Advocate 1997 SCCR 52 at page 54.

Submissions for the defence

[26]

The sentences may have been lenient, but they were not unduly so. Charges 1 to 9

had been committed 40 years or more ago when the respondent had been a very young man.

The last of the offending in the remaining charges had ceased more than 20 years ago. The

respondent's life divided into three distinct aspects, viz. (i) a young man; (ii) a mature man;

(iii) the man who went on trial. The respondent now was a very different man from the man

he had been at the times of the offences. He had led a settled life. He was in a stable

relationship with a long-term partner. He had held down responsible employment for

decades. He had changed his life. He presented a low risk of offending. The judge had the

advantage of hearing all of the evidence. He took all relevant considerations into account.

He was entitled to make the sentence for the assaults concurrent to the sentence for the

sexual offences. In effect, he considered that in the whole circumstances 8 years was an

appropriate in cumulo sentence for all of the offending.

Decision and reasons

[27]

The sentencing judge did not carry out an exercise of the sort outlined by the court in

HM Advocate v Fergusson at paras [23] - [25]. He ought to have done. We are in no doubt

that if he had it would have been apparent to him that the totality of the sentences was

unduly lenient.

[28]

We do not agree with the judge's reasons for making the sentence for charges 7, 8, 10,

11, 12, 13 and 15 concurrent with the sentence for the sexual offences. The offending did not

represent a single course of conduct. Many of the offences related to a later period than the

sexual offences, and they also involved further complainers, Y and Z. In those

circumstances we do not accept that it would be disproportionate to impose an additional

period of imprisonment for the non-sexual offences. The effect of making the sentence for

them a concurrent one was indeed that those offences were committed "for free" (McDade v

HM Advocate, page 54).

[29]

Of course, if a sentence is made consecutive to another sentence, the sentencing judge

must ensure that the totality of the sentences is not excessive. That is a factor which they

should take into account when they decide the length of those sentences. It may make the

imposition of an in cumulo sentence for all offences the most appropriate disposal. It was

common ground that an in cumulo sentence for all of the offences would have been suitable

here. We agree.

[30]

The sentencing judge made reference to the case of HM Advocate v AP

[2024] HCJAC 31, we think in order to support his conclusion that 8 years was an appropriate

sentence for all of the sexual offences. He assumed correctly - that at the time of

sentencing the respondent in that case was younger than the respondent here. He was in his

late 30s. However, the sexual offending here was a good deal more extensive than in AP,

making a longer sentence for it appropriate. Due account also has to be taken of the

sustained violent offending in the present case. These factors indicate that an in cumulo

sentence requires to be significantly higher than the 8 years passed in AP.

[31]

Following the approach suggested in Fergusson, we consider that an appropriate in

cumulo sentence for charges 1, 2, 3 and 4 would have been 6 years' imprisonment. In

reaching that view we have regard to the serious nature of the conduct, the young ages of

the complainers, and all of the other circumstances of the offences, including that there was

financial inducement in charge 1, violence was used in charge 3, the repeated offending in

charge 4, and the serious consequences discussed in the victim statements. While the

respondent was not in a position of authority over U, V or W at the relevant times, he was a

good deal older than them and he took opportunities to abuse them on occasions when,

because of family circumstances, they were together. On the other hand, we have regard to

the fact that the maximum sentence for charge 4 is 2 years' imprisonment. That is the

sentence we would have imposed on that charge had it stood alone. We also take account of

the respondent's youth and immaturity at the time of these offences, his current age and

ill-health, and his pro-social life for at least two decades prior to his remand.

[32]

We turn to charges 5, 6 and 9. W was raped twice. Significant force was used, and

there was some vaginal and anal bleeding. X was raped once. She was pregnant at the time.

There have been serious emotional and psychological consequences for both women. The

respondent was 19 or 20 at the time of charge 5, 19 to 23 at the time of charge 6, and 23 or 24

at the time of charge 9. He was relatively young and immature. Once again we take account

of his current age and ill-health and his pro-social life latterly. Had we been sentencing for

these three offences alone the sentence would have been lower than the sentences in

HM Advocate v RM 2024 JC 181 (where the custodial term of an extended sentence was

10 years) and HM Advocate v CM [2024] HJAC 39 (9 years). In our view an appropriate

sentence would have been 8 years' imprisonment.

[33]

That brings us to the non-sexual charges. While there was no severe injury, in some

cases there was significant injury. The assaults were violent and frequent. They occurred

over a period of about 20 years. For most of that time the respondent was a fully mature

adult. There have been serious consequences for X, Y and Z. We take account of the

respondent's current age and ill-health and his pro-social life since these offences. Had we

been sentencing for these offences alone an appropriate sentence would have been 4 years'

imprisonment.

[34]

The cumulative total of those sentences is 18 years' imprisonment. That would be an

excessive sentence. Application of the totality principle points to a significantly lower

sentence being appropriate. We consider that an in cumulo sentence of 12 years'

imprisonment is fair and proportionate.

[35]

We shall allow the appeal, quash the sentences which the judge imposed, and

substitute an in cumulo sentence of 12 years' imprisonment. As before, that sentence is

backdated to 21 May 2024.