Darren Patrick Jeffrey Edwards v. Her Majesty’s Advocate [2019] HCJAC 80

Note of appeal against conviction:- The appellant was indicted and proceeded to trial at Edinburgh High Court in January 2019 in relation to 33 charges alleging various offences of indecency including 5 rapes contrary to section 1 of the Sexual Offences (Scotland) Act 2009, 4 charges of having sexual intercourse/sexual activity with a child between the ages of 13 and 16 contrary to sections 28 to 30 of the 2009 Act and the remaining charges relating to sending indecent communications (either indecent photographs or inviting them to meet him for the purposes of engaging in sexual activity) either under 13 or between the ages of 13 and 16 contrary to sections 23, 24, 33 and 34 of the 2009 Act. There were two further charges relating to the appellant sending grossly offensive, indecent, obscene or menacing messages to girls under 16 contrary to section 127(1)(a) of the Communications Act 2003. On 30 January 2019, following an 18 day trial, the appellant was convicted of 17 charges including:- (a) charge 3, involving two occasions in January or February 2016 when he had sexual intercourse at his house with BBS, then aged 14, this having originally been one of the rape charges; (b) charge 12, being an occasion in January 2018 at Caird Park, Dundee, on which he engaged in sexual activity, including intercourse, with KM, then aged 15 years; (c) charge 14, an occasion in April 2016 at his house when he engaged in sexual activity, including sexual intercourse, with LGC, then aged 14; (d) charge 22, involving various occasions between July and October 2017 in a wooded area of Dundee when he engaged in sexual activity, including both vaginal and anal intercourse, with SM, then aged 14 or 15; and (e) charge 23 between July and October 2017 in a wooded area of Dundee during consensual penile/vaginal sexual intercourse the anal rape of SM contrary to section 1 of the Sexual Offences (Scotland) Act 2009. On 28 February 2019, following the obtaining of a Criminal justice Social Work Report, the sentencing judge imposed a sentence of 10 years imprisonment in total in relation to the charges involving penetrative sexual activity with girls between the ages of 13 and 16 or communications with girls under 13 (charges 1, 3, 12, 14, 22 and 24). The sentencing judge indicated that had he been imposing separate sentences on each charge periods of 3, 18, 30, 30, 30 and 12 months would have been selected respectively. The appellant was sentenced to 5 years imprisonment in relation to charge 23 and in relation to the remaining offences involving communicating with girls under 16, namely, charges 8, 10, 11, 13, 15, 21, 25 and 27, he imposed 5 years imprisonment. In relation to the breaches of the 2003 Act the appellant was sentenced to 6 months and all sentences were to run concurrently and backdated to 15 February 2019 when the appellant was first remanded. The appellant appealed against his conviction it being contended that the offences of under-age sexual intercourse, namely, charges 3, 12 and 14, were incapable of providing the mutual corroboration of the rape in charge 23. It was submitted on behalf of the appellant that the evidence in support of the rape allegation was materially different from that in support of the other three charges, in particular, the gravity and circumstances were so significantly different that the conduct was not capable of being viewed as part of a course of criminal conduct. It was conceded that a charge of rape could be mutually corroborated by a charge which did not include a penetrative assault, however, in the present case the rape charge was a radical departure from the conduct relating to the other three charges. It was submitted on behalf of the appellant that the critical question was the same as had been considered in CW v HMA 2016 JC 148 where it was held that a charge, where consent was not relevant, could be used to corroborate evidence in respect of a charge where consent was critical, however, it was the underlying similarity of the conduct rather than the label attached to it that had to be considered. Here the court refused the appeal. The court considered that the conduct described in charges 3, 12, 14, 22 and 23 could all be seen as parts of a course of conduct persistently pursued by the appellant in that there existed between them conventional similarities in time, place and circumstances, in particular what was seen as predatory sexual conduct in relation to underage girls involving sexual messaging followed by sexual activity at a pre-arranged meeting. In relation to the appeal against sentence the court considered that the sentence imposed was excessive, having regard, in particular, to the appellant’s age at the time of the offences (17-19 years). The court quashed the sentence of 10 years imprisonment and substitute an extended sentence of 9 years, comprising of a custodial element will be 6 years and an extension period of 3 years in terms of section 210A of the Criminal Procedure (Scotland) Act 1995.