Man jailed for six years for raping two ex-partners has length of sentence increased

About this case:

• Citation:
  [2024] HCJAC 39
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

Respondent CM was given an in cumulo sentence of six years’ imprisonment by the trial judge on 27 May 2024. Counsel for the respondent accepted that the sentence was lenient but submitted that it was not unduly so.

The appeal was heard by Lord Doherty, Lord Armstrong, and Lord Beckett. P Harvey, advocate depute, appeared for the Crown and S Gilbride, advocate, for the respondent.

High culpability

Charges 1 and 2 against the respondent both involved the rape of his partner while they were in bed together and the complainer had responded negatively to his sexual advances. On both occasions, he ignored the complainer’s response and went on to have intercourse. Charges 4 and 5 involved similar conduct against a subsequent partner, with charge 5 in particular involving a rape while she was heavily pregnant, and another 4 to 6 weeks after the baby’s birth while the complainer still had stitches from an epistiotomy.

The respondent’s evidence was that all sexual relations with the complainers had been consensual. He was aged 19 at the time of the offences against the first complainer. He was 23 during the first period of offences against the second complainer and 24 during the second period. His CJSWR indicated that he had a pro-social background with no previous convictions and a moderate risk of further offending.

Taking into account the CJSWR and the significant psychological harm caused to the first complainer, as detailed in her impact statement, the trial judge imposed a sentence of six years’ imprisonment. The day after the appellant was sentenced, the High Court of Justiciary issued its decision in HMA v Fergusson (2024), and it was acknowledged by the judge that, in light of that decision, the original sentence was lenient.

For the Crown it was submitted that inadequate weight had been given to the seriousness of the respondent’s course of conduct against both partners, the harm done to the first complainer, and his high culpability for the rapes of the second complainer. The judge ought to have identified suitable sentences for each of the charges, aggregated them, and then reduced the total to reach a fair and proportionate sentence.

Counsel for the respondent accepted that the sentence was lenient but submitted that it was not unduly so, especially since he was only 19 at the time of the offences in the first two charges. Even if the sentence could be said to have been unduly lenient, this was not a case where it was necessary for the court to exercise its discretion to impose a more severe sentence.

Persistent nature

Lord Doherty, delivering the opinion of the court, said of the charges: “Charges 1 and 2 each involved a single rape. The harm to the complainer was serious. On the other hand, when assessing the respondent’s culpability the judge was right to take account of his youth and lack of maturity at the time. Had these charges stood alone we think an appropriate in cumulo sentence would have been 5 years’ imprisonment.”

He continued on charges 4 and 5: “Age and lack of maturity were not considerations of any real weight in relation to these offences, and the persistent nature of the offending points to a higher level of culpability than in respect of charges 1 and 2. Had charges 4 and 5 stood alone an appropriate in cumulo sentence would have been 7 years 6 months’ imprisonment, 9 months of which would have been attributed to the aggravations.”

Noting that a 12-year sentence would be disproportionate, Lord Doherty said of an appropriate sentence: “The totality principle requires that the sentence here be significantly less than that aggregate figure. It points to a fair and proportionate sentence being of the order of 9 years’ imprisonment. We have not relied solely on that approach. We have also compared this case to other recent sexual offence cases involving more than one complainer, of which there are a considerable number.”

Highlighting the 8-year sentence imposed in HMA v LB (2023), he added: “While, unlike the present case, there was only one sexual attack on each complainer, the rape of the second complainer formed part of a pattern of violent behaviour towards her and was itself accompanied by violence. The behaviour against the second complainer occurred when JI was a mature adult aged 25-29. He had been aged between 22 and 24 at the time of the indecent assault against the first complainer.”

Allowing the appeal, Lord Doherty concluded: “Comparison with these cases indicates that an appropriate sentence for the respondent is 9 years’ imprisonment, of which we would attribute 7 months to the 2016 Act aggravations.”