Army veteran with PTSD who raped former partners fails in appeal against sentence

John Falconer, who was convicted of three charges of rape and sentenced to eight years with an extension period of three years, claimed that the sentence imposed was “excessive” because he was suffering from post-traumatic stress disorder (PTSD) at the time of the offences.

However, the Appeal Court of the High Court of Justiciary refused the appeal after ruling that despite the fact the appellant was receiving treatment for PTSD there remained an “obvious risk” to future partners.

‘Extremely traumatic event’

Lord Drummond Young and Lord Turnbull heard that the appellant was convicted after trial of three principal charges: the first was that on various occasions in November and December 2015, he assaulted a named woman, his then partner and raped her; the second charge was that, on an occasion in July 2017, with a different partner, the appellant assaulted her and raped her; and the third charge was that on a different occasion, the same second partner was raped again – all contrary to section 1 Sexual Offences (Scotland) Act 2009.

Having considered the criminal justice social work report, which stated that the appellant was a service veteran with a diagnosis of PTSD, and having noted that the appellant had a number of previous convictions of a domestic nature, the judge imposed an extended sentence of 11 years, with a custodial portion of eight years and an extended portion of three years.

The judge had also considered a psychiatric report, which referred to an “extremely traumatic event” that occurred in Afghanistan when the appellant was on active service there.

In trying to rescue the appellant, who had been trapped in a door, one of his colleagues accidentally activated an improvised explosive device which exploded and led to that colleague losing his life, in an incident which also resulted in the death of the commander of the appellant’s section despite the appellant’s efforts to keep him alive.

The judge stated that she gave some weight to the diagnosis of PTSD and the fact that, although he was only diagnosed with PTSD in 2014 and did not receive proper treatment initially, he was receiving proper treatment by the time of sentence which would reduce the risk.

She nevertheless concluded that the appellant was a “risk to the general public” and in particular to any women with whom he might become involved.

‘Protect the public’

As a result, she decided to impose an extended sentence and considered that a lengthy custodial part was necessary to punish the appellant to mark society’s “disapproval” and to “protect the public” and act as a “deterrent”.

The main ground of appeal was that “insufficient account” had been taken of the very traumatic experiences that the appellant had suffered in Afghanistan.

The court was told that as a consequence it was said he turned to illicit drugs as a coping mechanism, following which he was discharged from the Army in 2011, but prior to that there had been no offending.

It was also argued that because proper treatment was now being received the risk of recidivism was not as stated in the criminal justice social work report and should be regarded as “significantly reduced”.

For that reason, it was submitted that the sentence imposed was “excessive”.

‘Obvious risk’

Refusing the appeal, the judges observed that while the diagnoses of PTSD was a factor that produced “sympathy”, it did not reduce the risk to the public.

Delivering the opinion of the court, Lord Drummond Young said: “We would regard a sentence of eight years imprisonment with an extension period of three years in addition as a standard sentence for the sort of sexual offending that is in issue here. Apart from the fact of PTSD, we cannot fault that sentence.

“The main argument is that the PTSD is now being treated and that that should reduce the risk of further offending. In that connection we were referred to passages in the criminal justice social work report and also to the psychiatric report obtained from Dr Ahmed immediately before the imposition of sentence.

“But the problem that we have in this is essentially twofold. First of all the trial judge did take account of the diagnosis of PTSD… Notwithstanding that she considered that the appellant posed a risk to the general public and in particular to women with whom he might be involved.

“The judge was also entitled to take account of the repeated incidents of rape disclosed by the charges. These by themselves seem to us to suggest a clear risk of danger to any future partners that the appellant might encounter.”

He added: “As far as the PTSD is concerned there is it seems to us one important factor. There is nothing in the psychiatric report from Dr Ahmed to address the causal link between PTSD and the repeated rapes of the two complainers disclosed by the three material charges…and we cannot discover anything in the papers before us, in particular Dr Ahmed’s report, to suggest that there is any causal link between the PTSD and these particular, extremely unpleasant, incidents of rape.

“The treatment that the appellant is now receiving in the form of medication and further forms of treatment for his PTSD may have an effect in that if they are successful he might be released at the earliest possible opportunity, that is four years into the custodial part of his sentence. That does not, however, alter the fact that from the very fact of these repeated rapes there is an obvious risk to future partners.

“We must take into account the risk to the public presented by the appellant. As we have noted, Post Traumatic Stress Disorder, although clearly a factor that produces sympathy, does not reduce the risk to the public.

“For that reason, we do not think that ultimately there is merit in this ground of appeal.  For that reason, we will refuse the appeal and affirm the trial judge’s sentence.”