Man who committed second rape while on bail for first loses appeal against 10-year prison sentence

About this case:

• Citation:
  [2023] HCJAC 21
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Pentland

Dorel Simion argued that the cumulo sentence was excessive despite the serious nature of the offences. A co-accused on the second charge who pled guilty at the outset of trial received a sentence of five years and six months’ imprisonment, reduced from six years on account of the guilty plea.

The appeal was heard by Lord Pentland and Lord Doherty. Culross, advocate, appeared for the appellant and Trainer, advocate depute ad hoc, for the Crown.

Duplicate the same purposes

The first rape occurred in August 2020 after the victim, a middle-aged woman who at the time was heavily intoxicated with alcohol, joined a group of men including the appellant who were sitting outside a block of flats. As she left the group, the appellant went after her and raped her on open ground. Two witnesses saw the victim lying on the ground while the appellant put his penis in her mouth. He was discovered by police later that night hiding near the locus.

Some 10 months later in June 2021, the appellant and a co-accused, both of whom were drunk, seized hold of an 18-year-old woman and took her to some bushes, where they repeatedly raped her. At the time of the second offence, the appellant was on bail for the first offence. The co-accused in respect of the second charge later pled guilty to the offence.

It was submitted that that trial judge had given insufficient weight to the fact that the appellant had no previous analogous convictions and a settled family life and good work record. While it was accepted that the offences were serious, the sentence imposed in this case was too long and punishment had been double counted.

Reliance was placed on the case of Ibbotson v HM Advocate (2022), in which the appeal court observed that the interests of justice did not require two sentences for the same offence to duplicate the same purposes of punishment, deterrence, protection of the public, and rehabilitation. Counsel also placed reliance on the headline sentence of six years selected for the co-accused, arguing that this demonstrated the duplication of sentencing purposes in the overall cumulative sentence imposed on the appellant.

Deplorable lack of respect

Lord Pentland, delivering the opinion of the court, stated: “These were each serious offences in their own right, deserving of substantial punishment. The appellant raped two highly vulnerable victims when they were incapable of consenting as he would have been fully aware. The second rape was aggravated by being committed while the appellant was on bail for the first charge. The appellant’s conduct on each occasion was predatory and displayed a deplorable lack of respect for his victims, each of whom were subjected to very degrading sexual attacks.”

On the relevance of the Ibbotson case, Lord Pentland said: “It is important to note that the appellant had served nearly the equivalent of a 3 year sentence in terms of the sentence imposed on the first indictment. It follows that the real effect of the court’s decision was that the total punishment for the two offences equated to 9 years’ imprisonment, only one year less than that imposed in the present case. Moreover, whereas Mr Ibbotson’s offences were committed when he was aged 22 and 24, the appellant’s were committed when he was aged 28 and 29. In these circumstances, we do not consider that Ibbotson lends any material support to this appeal.”

Turning to the argument on the co-accused’s sentence, he added: “We confess that we had some difficulty in understanding this submission. The co-accused faced only a single charge and in his case there was no bail aggravation. The sentence selected for the co-accused does not in any sense support the proposition that the sentence imposed on the appellant for the two rapes was excessive.”

Lord Pentland concluded: “The criminal justice social work report disclosed that the appellant had little insight into the impact of his offending. We do not consider that there has been any element of double counting in the approach taken by the trial judge or that there has been duplication of sentencing purposes. We are entirely satisfied that the cumulo sentence of 10 years’ imprisonment was not excessive in view of the gravity of the offences.”

The appeal was therefore refused.