Rape trial judge should have sentenced on basis of crimes: appeal court
Whatever a judge’s own views on prosecution and sentencing policy, he must sentence on the basis of the crimes of which the accused has been convicted, in light of current Scottish sentencing principles and practice, the Criminal Appeal Court has said.
The remarks were made by the Lord Justice Clerk Carloway, sitting with Lords Bracadale and Matthews, in a case in which the court held that sentences imposed on a man, SSK, for a catalogue of sexual offences against two former partners and their children were unduly lenient.
The court quashed an extended sentence amounting to seven years' imprisonment with a five year custodial element, and substituted a 12 year sentence including eight years in custody. It ruled that the trial judge, Lord Stewart, had afforded too much weight to the previous sexual experience of the complainers and to their sexual relationships with the accused, and that he had no basis for reducing the sentence based on his impression of the robustness of the children.
SSK was convicted of various incidents of lewd practices and attempted so on various occasions against A, a boy then aged nine or 10; lewd practices including digital vaginal penetration on various occasions against T, a girl then aged between 12 and 14; and in relation to the adult complainers, indecent assaults including penile penetration of the anus and anal rape. The offences took place between 2007 and 2013.
SSK and the complainers were all involved in the "swingers" (partner swapping) scene in Glasgow and Paisley, and engaged in sexual promiscuity at swinging parties. The trial judge commented that the evidence of one complainer provoked "incredulous mirth" among the jurors. The accused continued to deny the offences against the children, though A said he had been assaulted "loads of times". A had forgotten his experiences, until the investigation had awakened his memories; the judge regarded T as “robust and knowing” rather than vulnerable, and the judge discounted any element of breach of trust (as distinct from power) in relation to the children.
Describing the offences against SSK's partners as “essentially non-violent relationship rapes”, the judge reported that juries did not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences were “disproportionate”. In this context, he challenged the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers in being raped and then going through what might be an unsuccessful prosecution and trial. Given the partners' own sexual experiences, he regarded the offences against them as relatively minor and capable of being prosecuted summarily had they stood alone.
Pointing to the “spectrum of seriousness” in rape sentencing as illustrated by Scottish practice and the England & Wales Definitive Guideline, he asked whether there was a lower custodial limit for rape sentences.
Delivering the opinion of the court, the Lord Justice Clerk said: “Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a person’s sexual integrity. It has, in that context, a separate sentencing regime.
“In relation to the children, the judge expresses a concern about the negative impact a severe sentence might have on them, having regard to other cases in which such an impact may have occurred. There is no basis for such speculation in this case, where the impression, which the judge was certainly entitled to hold, was of relatively robust teenagers getting on with their lives.
“The trial judge has also made some pithy remarks about prosecution policy, jury reaction and related matters. It may be that others may share some of his thoughts, but many will undoubtedly not. The short point is that, whatever a judge’s own views may be, he must sentence on the basis of the crimes of which the respondent has been convicted, albeit in the contexts in which these crimes have been committed, in light of current Scottish sentencing principles and practice."
He added that the judge was entitled to have regard to sentencing guidelines in other jurisdictions, especially in neighbouring countries such as England & Wales, but "such comparators must not be applied too rigidly".
The degree of abuse against A, at his then age, was "particularly serious", even if he had later coped with it in a manner that might not have been anticipated. The conduct in relation to T was more limited, but still serious and significant. A cumulative sentence of four years was the least that would be appropriate.
Regarding the adult complainers, the court agreed with a New Zealand case that said "a complainer's general sexual experience prior to being raped should not be regarded as a significant factor in gauging culpability", though consensual sexual activity immediately prior to the rape might reduce culpability. had these offences stood alone, a sentence in the region of six years might have been regarded as appropriate, but regard had to be had to the cumulative effect, and four years was appropriate, to produce an overall custodial element of eight years.
Lord Carloway added: “The court agrees that an extended sentence was appropriate, given that the respondent clearly poses a threat of serious harm to the public (notably women with young children). In such circumstances, the period of supervision should be significantly longer than that considered appropriate by the trial judge. The court will select a period of four years to produce an extended sentence of 12 years.”