Callum Rae v. Her Majesty’s Advocate [2021] HCJAC 13


Note of appeal against sentence:- The appellant pled guilty under the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to two charges:- (1) rape to injury of a child under the age of 13, contrary to sections 18, 19 and 20 of the Sexual Offences (Scotland) Act 2009; and (2) failing appear at a diet of the High Court of which he had been given due notice, contrary to section 102A(1)(a) of the Criminal Procedure (Scotland) Act 1995. The appellant was sentenced to an extended sentence of 3 years and 9 months comprising of a custodial element of 1 year and 9 months in relation to charge 1 and 6 months in relation to charge 2 consecutive to charge 1. The appellant appealed against the sentence imposed it being contended that a custodial sentence was excessive. A bench of 3 judges considered the particular circumstances of the case including the appellant’s lack of knowledge of the complainer’s age and his youth and invited submissions from the Crown in relation to their understanding of the contact between the appellant and complainer prior to the events libelled, the appellant's knowledge as to the age of the complainer and the Crown’s policy in respect of such cases including any comments on the English authorities including Attorney General's References Nos 11 and 12 of 2012 (Roshane Channer and Ruben Monteiro) [2013] 1 Cr App R. (S) 43. It was submitted on behalf of the appellant that there were present in the case exceptional mitigating circumstances which would allow the sentencer to impose a non-custodial sentence the culpability of the appellant being at the lowest end of the scale. These mitigating factors included that the appellant believed the complainer to have been 16 and there was no manipulation, predatory behaviour, force or coercion of the complainer who was a “willing and active participant” in the sexual activity. It was further submitted that the appellant was 19 at the time of the offence (he was 21 at the time of the appeal hearing) and his lack of maturity and his youth were factors which ought to be taken into consideration. Furthermore, it was submitted the sentencer had placed insufficient weight on the appellant’s difficult upbringing in that he had been diagnosed with ADHD as a child and his upbringing had seen him exposed to domestic violence and social work intervention. It was submitted that whilst the absence of consent was not an integral ingredient of the offence, the presence of consent was relevant to the question of sentence particularly in relation to young offenders, as was the age of the offender compared to the complainer (R v Corran & Others [2005] 2 Cr. App. R. (S.) 73). Reference was made to ‘the Definitive Guideline for Sentencing Sexual Offences’ issued by the Sentencing Council for England and Wales on 1 April 2014 in which it was recognised that there may be exceptional cases where a lengthy community order with a requirement to participate in a sex offender treatment programme may be the best way to alter an offender’s behaviour and protect the public. On behalf of the Crown it was submitted that in relation to prior contact they had known each other via social media for around one year during which conversations there was no mention of the complainer’s age. In relation to the Crown’s position in relation to the appellant’s understanding of the complainer’s age the court was advised that the complainer thinks she had previously told the appellant that she was 16. In relation to the Crown’s understanding of policy in similar cases under reference to English authorities submissions were made in relation to the applicable law. Here the court refused the appeal and considered that the sentencing judge was entitled to conclude that there was no suitable alternative to imprisonment. The court stated that, given consent is immaterial to commission of the offence (it is not a defence to a charge under sections 18-26 of the 2009 Act that ‘A’ believed ‘B’ had attained the age of 13 years), that it is difficult to consider consent as a truly mitigating factor, rather, that lack of consent ought to be treated as an aggravating factor. The court noted that in relation to an older child (aged between 13 and 16) section 39(1) provides a statutory defence that an accused person had a reasonable belief that the child in question had reached the age of consent, however, the court considered that the absence of such a defence in relation to children under 13 was significant. The court stated that whilst such a factor may legitimately be treated as a mitigating factor, if it was the main mitigating factor it would be inappropriate to grant an absolute discharge and such a disposal for a conviction under the sections involving younger children would be rare. The court observed in the present case that the complainer had just turned 12 and the appellant was aged 19 so was around 7 ½ years older than her and albeit she told him she was 16 he made no further inquiry about her age. The court also had regard to the appellant’s previous convictions and his failure to attend court and to the terms of the Criminal Justice Social Work Report which highlighted a number of concerns including that the appellant presented a high risk of sexual reconviction and a very high risk of reconviction for a violent offence.