Her Majesty’s Advocate v. S.S.K. [2015] HCJAC 114

Crown appeal against sentence:- On 6 May 2015, at Glasgow High Court, the respondent was found guilty after trial of seven sexual offences perpetrated against 2 of his former partners and their children, namely:- (charge 1) on various occasions between 2007 and 2008 common law lewd and indecent practices against AdM, a boy aged between 9 and 10; (charge 2) on various occasions between 2007 and 2008 indecently assaulting AdM by attempted sodomy; (charge 7) on various occasions between 2008 and 2010 statutory lewd and indecent practices against TD, a girl aged between 12 and 14; (charge 13) between 2008 and 2010 indecent assault against CD by the continued penile penetration of the anus after the withdrawal of consent; (charge 15) on various occasions between 2008 and 2010 indecent assault against CD by penile penetration of the anus; (charge 18) on various occasions between 2010 and 2013 anal rape of CD contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (charge 19) in 2013 the anal rape of his wife, AM, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The respondent was sentenced to an extended sentence of 7 years with a custodial element of 5 years imprisonment which sentence was made up from separate custodial periods for each charge. The extended element of the sentence only applied to charges 13, 15 and 18. The Crown appealed against the sentence on the grounds that it was unduly lenient. In relation to the circumstances of the offences relating to his former partners, AM and CD, there had been involvement in the swinging scene in Paisley and Glasgow. It was submitted on behave of the Crown that the sentences were unduly lenient and, in particular, that the overall sentence did not give adequate weight to the gravity of the crimes, the lengthy time over which they took place and the effect of the conduct on the complainers.  It was further submitted that in relation to the offences committed against the children these had occurred when the respondent had been in a position of trust and in childrens’ homes through the use of force and threats. It was further submitted that had the Definitive Guideline on Sexual Offences for England and Wales been applied, a far higher sentence would have been imposed. In addition, the Criminal Justice Social Work Report was far from positive, with no acceptance of guilt or remorse on the part of the respondent and he continued to present a serious risk of harm, particularly sexual violence, to any women be became involved in a relationship with and their children. On behalf of the respondent it was submitted that the sentencing judge, having heard the evidence, was best placed to impose the correct sentence and the sentence imposed was within the range of appropriate disposals and the sentences selected had not been unduly lenient. Here the court allowed the appeal and quashed the extended sentence of 7 years and substituted an extended sentence of 12 years with the custodial element being 8 years. The court considered that some of the sentencing judge’s comments which the court regarded as controversial. There was reference to rape amounting to an aggravated assault and to concerns for the impact a severe sentence may have on the children, however, there was no suggestion that was the situation here. The court also noted that the sentencing judge made a number of remarks in relation to things like prosecution policy and jury reaction which many would disagree with. It was considered that insufficient regard had been had to the Definitive Guideline on Sexual Offences applicable in England and Wales and also to sentencing guidelines in other jurisdictions.