Crown wins appeal against sentence imposed on rapist as Criminal Appeal Court criticises trial judge’s ‘controversial’ remarks about complainers

He also made what the appeal judges described as some “pithy remarks” about prosecution policy, jury trials and jurors, and the sentencing of sexual offences involving both children and adults in general.

The judge classified the level of criminality and level of harm suffered by AM - a woman who “acknowledged few if any sexual boundaries” - as “minor”, involving only “a transient sense of violation”. The judges said he considered rape to be “a species of aggravated assault” and that the incident in question equated with “an assault to injury which might have been prosecuted at summary level”.

The trial judge also referred to CD “condoning” or “acquiescing in” the rapes. She freely chose to continue to live with the respondent after the rapes had occurred, which he regarded as such “powerful mitigation” that he might have considered an admonition as an option had the convictions involving her stood alone.

The judge described the offences as “essentially non-violent relationship rapes”. He reported that juries did not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences were “disproportionate”. In this context, he challenged the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers.

The judge also pointed to the “spectrum of seriousness” in rape sentencing as illustrated by Scottish practice and in the England and Wales Definitive Guideline, and asked whether there was a lower custodial limit for rape sentences.

In relation to the sentences imposed for the offences against the children, the judge indicated that he’d had regard to his “impression of the effect of the offending on the children” and “of the effect that more severe punishment might possibly have, taking into account the guilt that child sex abuse survivors are often said to experience, particularly where family and relationship break-up is involved”.

The trial judge considered that the sentence was “proportionate overall” in the sense of being “no more than is necessary”, but the appeal judges disagreed.

Delivering the opinion of the court, the Lord Justice Clerk said: “Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a person’s sexual integrity. It has, in that context, a separate sentencing regime.

“In relation to the children, the judge expresses a concern about the negative impact a severe sentence might have on them, having regard to other cases in which such an impact may have occurred. There is no basis for such speculation in this case, where the impression, which the judge was certainly entitled to hold, was of relatively robust teenagers getting on with their lives.

“The short point is that, whatever a judge’s own views may be, he must sentence on the basis of the crimes of which the respondent has been convicted, albeit in the contexts in which these crimes have been committed, in light of current Scottish sentencing principles and practice.

“He is entitled to have regard to sentencing guidelines in other jurisdictions, especially in neighbouring countries such as England and Wales.”

The appeal judges considered that if the offences in charges 13, 15, 18 and 19 had stood alone, a sentence in the region of six years might have been regarded as appropriate.

“However,” Lord Carloway continued: “since it is appropriate that these offences should attract a consecutive sentence to that imposed for the lewd conduct against the children, regard must be had to their cumulative effect. In such circumstances, a consecutive period of four years is appropriate, to produce an overall custodial element of eight years”.

He added: “The court agrees that an extended sentence was appropriate, given that the respondent clearly poses a threat of serious harm to the public (notably women with young children). In such circumstances, the period of supervision should be significantly longer than that considered appropriate by the trial judge. The court will select a period of four years to produce an extended sentence of 12 years.”