Man convicted of rape has custodial term increased after Crown appeals ‘unduly lenient’ sentence

The Criminal Appeal Court ruled that the sentence of three years imprisonment was “unduly lenient” and increased it to one of five years.

The Lord Justice Clerk, Lord Carloway, sitting with Lord Bracadale and Lord Matthews, heard that in June 2015, the respondent “AB” was found guilty following a trial at the High Court in Aberdeen of a charge of oral rape, contrary to section 1 of the Sexual Offences (Scotland) Act 2009, after assaulting the complainer “ND” by threatening her with violence.

The court was told that the sexual assault took place in the bathroom of a house in a village in Aberdeenshire in February 2014.

The complainer, who was 14 years old at the time of the offence, lived with her mother, brother and three younger sisters.

The respondent, who was 31 years old at the time, was her mother’s partner, the father of her three younger sisters and called “Dad” by the complainer.

On the date libelled, the respondent told the complainer to go into the bathroom and said he would hit her if she refused to act as he told her.

The incident ended when the complainer’s mother came into the bathroom.

The respondent denied raping the teenager, but was found guilty and the trial judge imposed a sentence of three years imprisonment.

She acknowledged that the respondent had been in a position of trust, but also took into account the accused’s “lack of analogous offending”, the absence of “penile penetration or other activity that physically damaged the complainer’s physical integrity”, and the violence being limited to a “single threat”.

However, the Crown appealed against sentence on the grounds of “undue leniency”.

The ground of appeal was that the sentence imposed “failed to recognise the gravity of the offence” which involved a “significant breach of trust against a child”, in the family home, perpetrated with threats of violence.

It was submitted that it “failed to satisfy the need for retribution and deterrence”.

Allowing the appeal, the judges ruled that the sentence imposed fell “outwith the range reasonably open to the trial judge”.

Delivering the opinion of the court, the Lord Justice Clerk said: “The court recognises at once that parliament has re-categorised penile penetration of the mouth as rape. It must sentence upon that basis. In this context it also recognises, as it may always have done, that an act of oral rape may be as abhorrent, demeaning and traumatising as vaginal rape.

“It must always be a question of facts and circumstances whether an act of oral rape will attract a higher sentence than a vaginal rape or vice versa. The factors to be considered will include, in each case: the level of violence used; the relationship between the offender and the victim; the age or other vulnerability of the victim; the degree of psychological as well as physical harm caused; the age, previous convictions and character of the offender and any degree of remorse. There are, of course, many other variables.”

The judges observed that the ‘Sexual Offences Definitive Guideline’, published by the Sentencing Council for England and Wales, was a “useful comparator” from a neighbouring jurisdiction, but one which should not be applied “too rigidly”.

Lord Carloway continued: “It must be borne in mind that in England and Wales there are statutorily defined sentencing purposes which are not directly applicable in Scotland. Nevertheless, the relevant sentencing range is a matter with which a sentence selected in Scotland might be cross-checked to see if any major disparity appears.

“It is unfortunate that the trial judge appears to have had no information on the psychological effects of the offence on the complainer. She was, however, aware that this was a rape of a 14-year-old child by a 31-year-old adult who was in a position of trust over her. Although the respondent is otherwise of reasonably good character and has been in steady employment, he has shown no remorse and remains in a state of denial.”

He added: “In all these circumstances, the court is bound to hold that the sentence of three years is unduly lenient, as falling outwith the range reasonably open to the trial judge. This is so, notwithstanding the deference which requires to be shown to the judge who saw and heard the complainer, although not the accused, who did not give evidence. The court will substitute instead a sentence of five years imprisonment.”