Teenage rapist wins appeal against ‘excessive’ six-year sentence

The Appeal Court of the High Court of Justiciary imposed a sentence of three years and nine months after ruling that the trial judge attached “too much weight” to issues of planning and trust and also failed to give sufficient weight to the age of the offender.

Lord Menzies and Lord Turnbull heard that the appellant “VE” was found guilty after trial at the High Court in Glasgow in June 2017 of the repeated statutory rape of a girl aged five and six over an 18-month period contrary to section 18 of the Sexual Offences (Scotland) Act 2009, and sexual assault by touching a girl aged seven and eight - the older sister of the complainer in the first charge - contrary to section 20 of the 2009 Act.

Detention

The appellant, who was 14 at the time of the offences and 15 at the date of conviction, was sentenced to six years’ detention in respect of the first charge and a concurrent sentence of one year’s detention in respect of the second.

But he appealed against sentence, arguing that the total custodial sentence was “excessive”.

Counsel for the appellant Claire Mitchell submitted that the trial judge “erred” in stating that the offences were carried out after a “level of planning had taken place in gaining the trust of the victims, isolating them within his home and perpetrating the offences while in a position of trust”.

In fact, the appellant was a 14-year-old-boy whose sister was friendly with the two complainers who came to play in their house and there was nothing to support a suggestion of a significant degree of planning - it was not a situation akin to that of an adult engineering a situation in which he can be alone with children.

It was also submitted that the trial judge failed to give “adequate weight “to the youth of the appellant and that “the need for punishment and retribution was less in the case of a child offender than the need for rehabilitation”.

‘Excessive sentence’

Allowing the appeal, the judges quashed the sentence of six years’ detention in respect of the rape charge and substituted a sentence of three years and nine months detention, while the sentence imposed for the sexual assault was unchanged.

Delivering the opinion of the court, Lord Menzies said: “We consider that there is force in each of these submissions. With regard to the first we do not consider that it is fair to categorise the appellant’s offending as displaying any real level of planning or gaining the trust of the complainers. They were friends of his sister and came round to his house to play. This was not engineered by the appellant.

“There is nothing to support any suggestion of planning or premeditation. This is not akin to a situation in which an adult arranges matters so as to be alone with a child.

“Moreover the appellant was merely the oldest of a group of children – that was the extent of any position of trust which he held. We consider that the trial judge attached too much weight to issues of planning and trust.”

‘Juveniles are less blameworthy’

The considerations to be taken into account when sentencing a child were discussed by the appeal court in Adam McCormick v HM Advocate SCCR 308 in which the dicta of Lady Hale in R(Smith) v Secretary of State for the Home Department UKHL 51, were adopted.

In particular when sentencing a child regard must be had to the “best interests” of that child as a “primary consideration”, under reference to Article 3.1 of the United Nations Convention on the Rights of the Child.

In Adam McCormick, Lady Dorrian observed that the “great majority of juveniles are less blameworthy and more worthy of forgiveness than adult offenders”, adding that it is “important to the welfare of any young person that his need to develop into fully functioning, law abiding and responsible member of society is properly met” and that it “is also important for the community as a whole, for the community will pay the price, either of indefinite detention or of further offending, if it is not done”.

Lord Menzies added: “It does not appear to us that the trial judge in the present case has had adequate regard to these considerations. In this respect we consider that he too has erred. For these reasons we are satisfied that the sentence of six years’ detention in respect of charge 1 is excessive in the all the circumstances of this case.”