High Court adds four years to sentence of man who raped B&B worker in her home in front of young son

About this case:

• Citation:
  [2023] HCJAC 23
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Respondent TJ was originally given a headline sentence of five years for raping the complainer LS, discounted by six months on account of his guilty plea. It was argued by the Crown that the trial judge had set the headline sentence too low, having failed to take into account significant elements of the respondent’s conduct.

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, together with Lord Matthews and Lady Wise. The Solicitor General, Charteris KC, and D McLean, advocate, appeared for the Crown and D Findlay KC and C Miller, advocate, for the respondent.

Degree of planning

The complainer worked in a bed and breakfast establishment where the respondent was staying for work purposes in June 2021. On the afternoon of 27 June, the complainer arrived for work along with her son and was offered vodka by the respondent, who had been drinking in the kitchen. She became extremely intoxicated and asked her employer to take her home. Her employer and the respondent assisted her into a car and drove her home.

On arrival at her home, the respondent suggested the employer leave while he remain behind, but he was eventually persuaded to leave. However, he returned to the complainer’s home, let himself in, and began to violate the complainer. At several points the complainer’s son entered the room to tell the complainer that her partner would be home soon. The complainer attempted to dial 999 but the respondent pushed her phone away. She later retrieved the phone and was able to call the police.

The sentencing judge’s report stated that the respondent could offer no real explanation for his actions, although he accepted responsibility for them. He was assessed at low risk of general offending and medium risk of sexual offending. Weighing the aggravating factors against the fact that this was his first conviction, she concluded the appropriate headline sentence for a first offender of previous good character was five years.

For the Crown it was submitted that the trial judge erred in her assessment of the gravity of the offence and failed to have regard to its particularly serious factors. These were the degree of planning and premeditation which reflected a high deal of culpability, the deliberate targeting of a victim known to be vulnerable, and that he committed the rape in front of her young son and prevented her from seeking help. A cross-check with the Sentencing Guidelines for England and Wales suggested a headline sentence of between seven and 13 years.

Sustained attack

Lady Dorrian, delivering the opinion of the court, began: “The trial judge appears to have considered the case one where the actings of the respondent were wholly opportunistic rather than having involved a degree of planning or premeditation. In our view the trial judge has underestimated the evidence which points to a degree of planning. This can be seen from the time at which, uninvited, the respondent entered the employer’s car. Thereafter, in the complainer’s house, the respondent declined to leave, and tried to engineer that he remain with her in the house whilst her employer departed. It is clear that from at least that point the respondent was engaged in planning to commit the offence.”

She continued: “This was a sustained attack, in which the respondent returned three times repeatedly to sexually assault and rape the complainer. The presence of her young son, who tried to comfort her, and who repeatedly tried to bring matters to an end by suggesting that her partner would be home soon, was an added degradation. The respondent prevented the complainer from seeking help, and each time after the intervention of the complainer’s young son, after seeming to check that the coast was clear, he returned to the attack. This is a significant factor to which the judge has clearly not attached sufficient weight.”

Addressing the appropriate sentencing range, Lady Dorrian said: “We are satisfied that the combined effect of the numerous serious factors present in this case all suggest that the sentence selected by the trial judge was significantly outwith the range of sentences which might reasonably be selected for the offending in question. The only mitigating factors were a lack of significant convictions and the tendering of the plea.”

She concluded: “We agree with the Solicitor General, using the material as a cross-check, that it seems that the circumstances of the offence would bring the case within category B2 of the relevant guideline in England and Wales, and at the higher end of the relevant range. Having regard to all relevant factors and the devastating impact on the complainer as now shown by the Victim Impact Statement, we are of the view that an appropriate headline sentence would be one of 9 years.”

Having substituted the respondent’s headline sentence for one of nine years, the High Court maintained a sentence discount of six months to reflect the utilitarian value of the plea.