H.M. v. Her Majesty’s Advocate [2018] HCJAC 26

Note of appeal against sentence:-The appellant was convicted after trial at Glasgow High Court of three charges:- (1) lewd and libidinous conduct and behaviour against his younger sister when she was aged 4 – 7 in a period in the 1970s; (2) the rape of the same sister in the 1970s; and (3) the repeated rape of his younger cousin when she was aged 3 – 6 in the 1970s. After obtaining a Criminal Justice Social Work Report on 5 September 2017 the trial judge sentenced the appellant to a cumulo sentence of 9 years imprisonment. The trial judge indicated that had the charges been sentenced separately he would have sentenced the appellant to 4 years in relation to charge 1 and 6 years in relation to both charges 2 and 3, however, he considered that a total sentence of 16 years would be an excessive sentence and therefore limited the sentence to a cumulo sentence of 9 years. The appellant appealed against the sentence imposed on the grounds that it was excessive. In particular, it was contended on behalf of the appellant that the trial judge had not given sufficient weight to the age of the appellant at the time the offences were committed. Here the court allowed the appeal. The court noted that in his report to the court the trial judge did not make any reference to the authoritative guidance provided in the case of Paul Greig v HMA 2013 JC 115. In Greig the court pointed to matters that should be taken into account when sentencing an adult for an offence committed as a child, for example, the age of the child at the time of the commission of the offence, the conduct in the intervening years and the weight to be attached to the need for future protection of the public. In relation to the present case the three risk assessment tools used to assess the risk presented by the appellant considered him to be of minimum or low risk. Further, the court noted that the trial judge did not appear to have any regard to the period, in excess of 40 years since the commission of the offences, during which time the appellant had not re-offended and he had enjoyed a full work history and played a full part in the community in which he lived. Whilst in Greig the sentence was reduced on appeal from 8 years to 5 years, in that case the offences were committed when the appellant was aged 14 and 15 whereas in the present case the appellant continued to offend in relation to charge 3 when he was 16 or 17 years of age. In light of all of the circumstances in the present case the court quashed the sentence of 9 years imprisonment and imposed a cumulo sentence of six years imprisonment whilst reiterating that the offences were abhorrent committed against very young children.