Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 105

HCA/2015/001258/XC

The Lord Justice Clerk

Lord Bracadale

Lord Matthews

OPINION OF THE COURT

delivered by LORD BRACADALE

in

APPEAL AGAINST SENTENCE

by

WA

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Ms C Mitchell; Martin Johnston & Socha

Respondent:  Niven-Smith AD; Crown Agent

18 November 2015

Introduction

[1]        On 23 March 2015 after trial at the High Court at Edinburgh the appellant was convicted of sexual offences in relation to SA, his teenaged daughter and LM, the teenaged stepdaughter of one of his work colleagues.  The charges of which he was convicted were as follows:

“(001) on various occasions between 1 February 2008 and 6 March 2010, both dates inclusive, at [an address in] Dunfermline, [an address in] Methil, both Fife and within a car in various places in Fife you did use lewd, indecent and libidinous behaviour and practices towards [SA], born 1 February 1995, your daughter, […], a girl then of or above the age of 12 years and under the age of 16 years, kiss her on the lips, put your tongue in her mouth, induce her to touch your penis and to masturbate you, penetrate her mouth with your penis, remove her clothing, make indecent remarks to her, touch and lick her vagina,: CONTRARY to Section 6 of the Criminal Law (Consolidation) (Scotland)  Act 1995;

 

(002) on various occasions between 1 February 2008 and 6 March 2010, both dates inclusive, at [an address in] Dunfermline, you did assault [SA], born 1 February 1995, your daughter, […], aged between 13 and 15 years, lie on top of her and rape her by penetrating her vagina with your penis;

 

(003) on various occasions between 1 September 2009 and 3 June 2010, both dates inclusive, at [an address in] Dunfermline, Fife, you did use lewd, indecent and libidinous behaviour and practices towards [LM], born 13 February 1995,  , […], a girl then of or above the age of 12 years and under the age of 16 years, kiss her on the lips, put your arms around her, push her against a wall, penetrate her mouth with your penis, put your hands inside her clothing, touch her breasts, touch her private parts: CONTRARY to Section 6 of the Criminal Law (Consolidation) (Scotland)  Act 1995; and

 

(004)   on an occasion between 1 September 2009 and 3 June 2010, both dates inclusive, at [an address in] Dunfermline, Fife, you did assault [LM], born 13 February 1995, […], aged 14 or 15 years, kiss her on the neck and lips, pin her down by her arms, touch her body and rape her by penetrating her vagina with your penis.”

 

[2]        The appellant had no previous convictions.  The trial judge imposed the following sentences: five years’ imprisonment on charge 1 and ten years’ imprisonment on charge 2, the sentences being ordered to run concurrently; five years’ imprisonment on charge 3 and six years’ imprisonment on charge 4, the sentences being ordered to run concurrently with each other and consecutively to the sentences imposed in respect of charges 1 and 2.  The total period of imprisonment was 16 years.

 

The circumstances of the offences
[3]        Both SA and LM were vulnerable girls with troubled upbringings.  SA was aged between 13 and 15 when the offences against her were committed between February 2008 and March 2010.  LM was of a similar age when the offences against her were committed between September 2009 and June 2010.  SA and LM were acquainted but did not know each other well.

The offences committed against the complainer SA

[4]        The complainer SA was raised from birth until the age of about two years by her biological mother.  At the age of two she was left with the appellant, who had been unaware of her existence up until that point.  The appellant brought her up.  Around the time that SA started secondary school the appellant and SA moved in with the appellant’s mother, SA’s grandmother.  The grandmother’s house in Dunfermline was the locus for certain of the conduct libelled in charges 1 and 2.  SA found the move unsettling.  She did not get on with her grandmother and they frequently argued.  SA got into difficulties at school and started to smoke at a young age.  Her grandmother would not allow smoking in the house but the appellant would regularly let SA smoke in his bedroom.  They would often smoke together whilst lying on the appellant’s bed, watching television.

[5]        On one such occasion the appellant asked SA to touch his penis.  He asked her for a kiss and put his tongue in her mouth.  SA pulled away and the appellant apologised.  After this, the appellant began to ask SA to perform sexual acts.  In particular, he kept asking her to perform oral sex.  During this time, SA was “grounded” as a result of her problems at school.  Although SA initially refused to accede to the appellant’s requests, she eventually relented as the appellant told her that she would no longer be grounded if she did as he asked.  The appellant then repeatedly forced SA to perform oral sex, on occasion using a degree of force to secure her compliance.

[6]        The appellant later asked SA for sexual intercourse.  When SA refused, the appellant climbed on top of her and penetrated her.  After a further incident of rape, the appellant would regularly demand that SA submit to sexual intercourse, that she perform oral sex on him, and masturbate him.  These offences took place in the appellant’s bedroom and in his car.  The appellant would on occasion use force, usually when in the car, to secure oral sex.  The appellant would also perform oral sex on SA.  On occasions when the abuse was occurring the appellant would tell SA “to just enjoy it”, or to “move about” to “enjoy it more”.

[7]        SA eventually disclosed the abuse to friends, who in turn told their own parents.  After police involvement, SA was placed into foster care in late 2008.  During this time, the appellant told SA that he missed her.  SA found the foster care arrangement difficult; she missed the appellant.  SA came under pressure from the appellant’s new partner, GM and the grandmother to retract the allegations.  In January 2009 she did so, believing the appellant’s reassurances that he would change and that they could be a family again.  In March 2009 SA returned to live with the appellant, who by this time had moved in with GM to an address in Methil.  The sexual abuse resumed, with SA again being forced to masturbate the appellant and to perform oral sex on him.  The abuse took place in the house in Methil, in the appellant’s car and at SA’s grandmother’s house in Dunfermline. 

[8]        When the appellant ceased his relationship with GM, he moved back to his mother’s house with SA.  The sexual abuse continued, including masturbation and rape, the latter being achieved through the use of force.  SA ran away from home several times and eventually disclosed the continuing abuse to a friend.  Following police and social work involvement, SA was again placed in foster care in March 2010.  SA never returned to her grandmother’s house and her contact with the appellant was limited.  On one occasion after SA had contacted him, the appellant told her that she was no longer part of the family. 

The offences committed against the complainer LM

[9]        LM was aged between 14 and 15 years at the time of the offences libelled in charges 3 and 4.  LM had also spent time in foster care and had experienced behavioural problems when growing up.  She had been raised by her mother and described in evidence having had no “father figure” during her formative years.  LM’s domestic circumstances deteriorated when her mother began a relationship with her step-father.  LM’s step-father worked at the same company as the appellant and it was through her step-father that she met the appellant.

[10]      LM went to the appellant’s house in Dunfermline a few weeks after meeting him.  She exchanged phone numbers with the appellant and kept in regular contact with him.  She grew close to the appellant and felt that she could confide in him.  LM then began to meet the appellant during his lunch breaks at work.  By this time her step-father had become verbally and physically abusive towards her and on occasion the appellant would let her stay overnight at his home.  As with the complainer SA, the appellant would let LM smoke in his bedroom.  The appellant gave LM gifts, money and cigarettes.

[11]      The appellant then began to initiate sexual contact with LM.  He would touch and stroke her legs and thighs; he would also kiss her.  LM was shocked and pulled away from the appellant when the behaviour first began.  The appellant later requested that LM perform oral sex on him.  He pinned her against the wall and demanded that she comply.  LM refused but the appellant insisted and forced her to comply.  LM also spoke to another occasion at the same locus when the appellant again forced her to perform oral sex.

[12]      LM also gave evidence of a single instance of rape.  She was unsure whether this occurred on the same occasion as she was forced to perform oral sex or whether it was at a later date.  In any event, the offence occurred in the appellant’s bedroom.  The rape commenced with the appellant touching her legs and breasts and kissing her.  LM did not kiss him back.  The appellant then removed his trousers, pushed her on to the bed, pinned her down and penetrated her.  LM described being in shock.  She tried to tell the appellant to stop and to push him away but he was too strong.  The appellant only stopped when he heard footsteps on the stairs outside the bedroom.

[13]      LM was later taken into foster care.  She eventually broke down and told her carer what the appellant had done.

 

The sentencing judge’s reasons for the sentence imposed

[14]      The case was continued for the preparation of a criminal justice social work report.  The author of the report found it difficult to analyse the appellant’s offending behaviour given that he continued to deny the offences.  He was, however, assessed as being likely to re-offend.  The report’s author recognised that a custodial sentence was the only appropriate disposal and suggested that consideration be given to imposing a period of post-release supervision.  Very little was said by way of mitigation by the solicitor advocate for the appellant at the sentencing diet.  The appellant was a first offender.  The appellant continued to maintain his innocence.

[15]      The sentencing judge explains that she imposed the sentences which she did as the whole evidence disclosed that the appellant was a calculating and predatory individual who sexually abused two vulnerable teenaged girls, one of whom was his daughter, over an extended period of time.

 

Submission

[16]      In submitting that the sentences imposed by the trial judge were excessive, Ms Mitchell advanced three arguments.  First, the trial judge had failed to give sufficient weight to the appellant’s lack of previous offending.  Secondly, she had failed to take fully into account the length of time during which the appellant was waiting for trial.  He was first interviewed in 2008 in relation to SA but no proceedings were taken at that time.  He was charged with offences against the two complainers in September 2010.  The trial did not take place until March 2015.  The appellant was entitled to a trial within a reasonable time.  Thirdly, it was submitted that even if the trial judge had properly considered all the relevant matters, the cumulative effect of the sentences had produced an excessive total sentence.

 

Discussion and decision

[17]      At the request of Ms Mitchell the Crown had prepared a timeline of the preparation of the case which disclosed the following history.  In September 2010 the appellant was charged by the police with offences against the two complainers and was released on an undertaking to appear at court on 30 September 2010.  The police report was submitted to the procurator fiscal on 21 September 2010.  On 28 September 2010 the procurator fiscal reported the case to the National Sex Crimes Unit at Crown Office.  On 29 September 2010 Crown counsel instructed the procurator fiscal to cancel the undertaking that the appellant should attend court on 30 September and to attend to various matters before the appellant was placed on petition:  both of the complainers were to be carefully precognosced;  all previous statements made by SA in 2008 were to be included and she was to be precognosced in relation to her retraction of the allegations at an earlier stage;  the witness to whom the complainer SA disclosed the abuse in 2008 was to be precognosced;  the mobile phones and computer of the appellant were to be examined;  psychological reports were to be obtained addressing the facts of the case and the retraction of the allegations;  medical and social work records in respect of each complainer were to be obtained and examined.  We pause to observe that these were the sort of instructions to be expected in a case of this kind which did not appear to have any unusual or complex features.

[18]      Not much appears to have happened for about five months.  On 2 March 2011 a memo was sent to the reporting officer in relation to the examination of the phone and computer of the appellant.  On 3 March 2011 the reporting officer advised that these had been examined and no relevant evidence obtained.

[19]      On 25 August 2011 the appellant wrote to the procurator fiscal asking about progress.  Although the letter was drawn to the attention of the principal procurator fiscal depute, no reply appears to have been sent. 

[20]      On 6 September 2011 a memo was sent to the police requesting documentary productions.  On 5 October 2011, more than one year after receipt by the procurator fiscal of Crown counsel’s instructions, the case was allocated to a precognition officer for pre-petition precognition. 

[21]      On 13 February 2012 further information was sought from the police.  On 13 and 15 February 2012 follow-up requests were sent to the psychologist requesting reports (it is not clear when these were ordered).  On 13 March 2012 the psychological reports were received.  On 12 March 2012 LM failed to attend for precognition.  On 22 March 2012 SA was precognosced.  On 25 May 2012, some eighteen months after the issue of Crown counsel’s instructions, the procurator fiscal reported the case to Crown Office.  On the same date Crown counsel’s further instructions were received.  In mid-October 2012 the papers were passed to the principal procurator fiscal depute.  On 14 December 2012 the case was allocated to a procurator fiscal depute to undertake outstanding work instructed.  In April 2013 the case was again reported to Crown Office and on 10 April 2013 Crown counsel instructed the procurator fiscal to proceed by placing the appellant on petition.

[22]      The appellant was indicted to a preliminary hearing on 15 April 2014 when the case was appointed for trial in July 2014.  After a number of postponements the case finally went to trial in March 2015.

[23]      In her report the trial judge explained that she took into account the fact that the appellant had been under risk of prosecution since September 2010 when he was initially cautioned and charged by police, and that he had had to deal with the stress of having the allegations hanging over him for a period of over four and a half years.  It is, however, clear that the trial judge did not have before her the detail in relation to the significant and unexplained delay which emerged in the timeline made available to us.  We consider that the trial judge did not take sufficient account of the delay.

[24]      We agree with the observations made by the trial judge in passing sentence that the offences of which the appellant had been found guilty were extremely serious. As the trial judge put it in her sentencing statement, they involved:

“…calculated and predatory sexual abuse for your own sexual gratification of two vulnerable girls in their early teens and in respect of whom you were in a position of trust.  Sexual crimes involving children are particularly odious.  Such abuse is not acceptable in a modern society, and it is the responsibility of the Court to reflect that understanding.” 

 

Given the course of conduct in relation to two separate complainers we consider that Ms Mitchell was correct to concede that consecutive sentences were appropriate.  Where consecutive sentences are imposed the sentencing judge requires to consider the cumulative effect of the sentences.  Sentences which, when looked at individually may be within the appropriate range, may, when made consecutive, produce an overall sentence which is excessive.  We consider that in this case, in addition to the issue of delay, the cumulative effect of the consecutive sentences has produced an overall sentence which is excessive, particularly in the case of a first offender.

[25]      In these circumstances we shall allow the appeal against sentence to the extent of quashing the sentence of ten years imprisonment on charge 2 and substituting a sentence of eight years imprisonment.  In relation to charges 3 and 4, while the sentences imposed were individually within the range open to the trial judge, in order to avoid an overall sentence which is excessive we consider that the appropriate course is to quash the sentences on both charges and impose instead concurrent sentences of four years imprisonment on each charge.  This will result in an overall sentence of twelve years imprisonment.