His Majesty’s Advocate v. Andrew McMahon and Christian Lambert [2025] HCJAC 34

Crown appeal against sentence:- The respondents were both convicted of the rape of a young child contrary to section 18 of the Sexual Offences (Scotland) Act 2009. On 14 March 2025 the first respondent was sentenced to an extended sentence of 7 years with a custodial term of 5 years after he was found guilty of two charges of rape of a young child contrary to section 18 of the 2009 Act. On 27 February 2025 the second respondent was sentenced to 3 years and 4 months imprisonment discounted from 5 years following his plea of guilty to a charge of the rape of a young child contrary to section 18 of the 2009 Act. The Crown appealed against the sentences imposed on the ground that they were unduly lenient and the Crown invited the court to confirm that, as a generality, the crime of rape of a young child is more serious and merits a higher sentence than rape under section 1 of the 2009 Act. On behalf of the first respondent it was accepted that the sentence was unduly lenient but the court was invited, when increasing the sentence, to impose a sentence no longer than was necessary. It was submitted on behalf of the Crown that the sentencing judge failed to properly assess the seriousness of the offence with reference to culpability and harm by failing to have regard to various factors which increased the first respondent’s culpability and the harm he caused to the complainer and a higher sentence was necessary. Some of the factors the judge failed to have regard to were:- (1) there was a significant age gap between the first respondent and the complainer who was aged 12 with a much younger developmental age; (2) there was a significant breach of the trust by virtue of the relationship between the first respondent and the complainer’s mother; (3) the first respondent threatened the child and used force beyond that inherent in the offence; (4) the first respondent blamed the child for what had happened; (5) the judge erred in viewing the offending as opportunistic as the conduct demonstrated numerous hallmarks of grooming; and (6) reference to the English sentencing guidelines would have shown that the culpability of the first respondent fell to be categorised as Level A and the harm as Level 2 which, in England, would place the offending in a sentencing range of between 11-17 years imprisonment. On behalf of the second respondent the Crown appeal was opposed. It was submitted by the Crown that the sentencing judge failed to assess the seriousness of the offence with proper reference to culpability and harm and, in particular, did not give appropriate weight to various factors- (1) the second respondent’s exploitation of the complainer’s vulnerability; (2) the motivation and premeditation of the second respondent; (3) the use of deception to conceal his age; (4) choking the complainer; (5) the physical, emotional and psychological harm caused to the complainer; (6) the judge gave undue weight to the mitigating factors including the parental neglect and bullying at school the second respondent had experienced which did not explain the commission of the crime; (7) the judge erred in law in considering that, having selected a final sentence of 3 years and 4 months imprisonment, an extended sentence was incompetent; and (8) reference to the English sentencing guidelines would have shown that the culpability of the second respondent fell to be categorised as harm category 2 and culpability category B, resulting in a starting point of 10 years imprisonment with a sentencing range of between 8-13 years imprisonment albeit the respondent’s age (21 at the time of the offence) was also a relevant consideration. On behalf of the second respondent it was submitted that whilst the sentence may be lenient it was not unduly so and even if Scottish case law and the English guidelines supported higher sentences for the rape of a young child they do not support significantly higher sentences. Here the court considered that the sentences imposed in relation to both respondents was unduly lenient and allowed both appeals. In relation to the first respondent the court considered that the sentencing judge failed to have regard to the following relevant factors:- (a) the course of grooming over a period of years demonstrated that the judge’s assessment that the crimes were opportunistic was erroneous; (b) the sexual exploitation by an adult of a vulnerable child aged 12 who had a developmental age of a child under 5; (c) the repeated nature of the respondent’s conduct; (d) the force used in charge 2; and (e) telling the complainer she must not report what had happened and threatening her with consequences if she did. The court considered that the judge should not have used a draft guideline as if it were in force and had incorrectly applied the English guideline. Further, the victim blaming by the first respondent rendered any mitigation almost irrelevant. In relation to the absence of cross-examination of the child witness the court considered that to be responsible advocacy given the terms of Practice Note 1 of 2019’s protocol for child and vulnerable witnesses and did not have a utilitarian benefit in the same way as a plea did in terms of section 196 of the 1995 Act. The court imposed an extended sentence of 13 years with a custodial term of 11 years and an extension period of 2 years. In relation to the second respondent the court considered that having regard to the seriousness of the conduct and the harm caused the sentence imposed was unduly lenient and considered that an extended sentence was necessary. The court considered that the two most significant mitigating features were the second respondent’s plea of guilty and his age at the time (21). In relation to discount the court reiterated that it is incumbent on those representing accused persons to intimate pleas of guilty at the earliest opportunity to secure a reduction in sentence approaching a third and it is vital too that COPFS ensure that defence lawyers can ascertain the scope and effect of the available evidence at an early stage in proceedings. Here the plea of guilty was intimated four and a half months after the second respondent’s first appearance on petition and the court considered that a reduction in the custodial element by a quarter was appropriate. The court imposed an extended sentence of 8 years and 3 months with a custodial element of 5 years and 3 months and an extension period of 3 years. In relation to the rape of a young child the court stated that in general, save exceptional cases, the appropriate sentence for the rape of a child under section 18 of the 2009 Act will be significantly higher than for rape under section 1.