About this case:

• Citation:
  [2023] HCJAC 43
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

Respondent RM was convicted of three charges of rape against three complainers, each of whom had been his partner at the time. Each charge involved a degree of force which escalated in severity over time. The trial judge imposed consecutive sentences of one, two, and five years’ imprisonment, and declined to make Non-Harassment Orders in respect of the complainers in charges 7 and 9 on the indictment. 

The appeal was heard by the Lord Justice Clerk, Lady Dorrian, along with Lord Matthews and Lord Boyd of Duncansby. The Lord Advocate, Bain KC, appeared for the Crown and Graham KC for the respondent. 

Confused different issues 

The offences encompassed in the charges covered periods in which the respondent was aged 18-23, 26, and 27 respectively. The first charge, charge 2 on the indictment, did not relate to a specific incident of rape but to a generality of behaviour spoken to by the complainer of sexual encounters that began consensually but later became non-consensual. Charges 7 and 9 both related to specific rapes that occurred following consensual intercourse, with the complainer in charge 9 reporting that she suffered bruising in several places as well as whiplash after the incident. 

In his sentencing report, the trial judge stated he did not think a cumulo sentence was appropriate given the separation in time between the charges. While he noted a conviction for domestic violence involving the first complainer, for which the respondent received a sentence of 18 months’ imprisonment, he considered it was relevant only so far as demonstrating a propensity to domestic violence. He considered that independently, the charges would result in sentences of two, three, and six years’ imprisonment respectively. 

Based on the totality principle, the trial judge reduced those sentences by one year each, reasoning that a sentence of 11 years was excessive for the circumstances of the offending as a whole. As to the issue of NHOs, the second and third complainers had given no indication they were apprehensive about future contact, and the second complainer had since left Scotland. 

The Lord Advocate submitted that the trial judge confused so many different issues and misdirected himself on so many issues that he had reached an unduly lenient sentence. He failed to explore with any degree of seriousness the question of the risk presented by the respondent, unjustly and inappropriately dismissing the terms of a detailed CJSWR which identified a significant risk.  

Additionally, the Lord Advocate submitted that the trial judge misdirected himself on the application of the Sentencing Young Persons guideline, which had no application given the respondent was nearly 30 by the time of sentencing. Even if he was merely seeking to reflect the respondent’s youth at the time of the first charge, the appropriate way to do so was not by reference to the SYP guideline. 

Obviously unduly lenient 

Lady Dorrian, delivering the opinion of the court, said of the test for leniency:

She continued: “This was clearly a case for an extended sentence, as senior counsel for the respondent had recognised at the outset of his plea in mitigation. It is clear that the trial judge made a series of errors in his assessment of the gravity of the offences, the harm caused, the culpability of the respondent and the risk he posed. It is not clear that he understood the Sentencing of Young Persons Guideline; and he appears to have considered as mitigating factors which were no such thing.” 

Assessing the trial judge’s approach, Lady Dorrian said: “The reality is that what the trial judge had to deal with was a persistent, escalating, course of conduct against consecutive partners, which had not been in any way diminished by an earlier conviction for domestically aggravated assault, two charges of domestically aggravated assault to injury, and culpable and reckless conduct. The trial judge has misdirected himself as to the relevance of the respondent’s age at the time of charges 2 and 7 and hence his culpability for the offending behaviour, which is in fact of a high level.” 

She continued: “He appears to have attached significance, in the sense of treating it as a factor that was mitigatory, to the fact that in all instances the behaviour resulted from ‘consensual encounters which became non-consensual’, failing to acknowledge that they became non- consensual because the respondent continued to force himself on the complainer after they had told him to stop, and by using force which escalated through the commission of the offences. They are the typical product of violent, controlling and entitled behaviour.” 

Lady Dorrian concluded on the lack of NHOs: “The complainer on charge 2 may have left Scotland, but she remains in the UK, in a directly adjoining jurisdiction, and no doubt retains friends and family in Scotland. She will remain contactable through modern means of communication and social media. The VIS of the third complainer refers to panic attacks even when seeing a car similar to that which the respondent owned, or seeing someone with similar features. She felt compelled to buy a new bed after her experience with the respondent. Applying the correct statutory test, we are unable to say that there is no need for these complainers to be protected by such an order.” 

The High Court therefore quashed the original sentence and imposed an extended sentence of a 10-year custodial period with an extension period of 3 years. It also made NHOs for periods of 15 years in respect of the complainers in charges 7 and 9.