His Majesty’s Advocate v. Calum Donald Dennis MacGregor [2025] HCJAC 28

Crown appeal against sentence:- On 27 February 2025 the respondent was convicted following a trial at the high court of a charge of rape and sexual assault by penetration. He was sentenced to 4 years and 6 months imprisonment. The Crown appealed against the sentence imposed contending it was unduly lenient with the trial judge failing to recognise the gravity of the conduct and placing undue weight on the respondent’s personal mitigation. It was submitted on behalf of the Crown that the trial judge did not adequately reflect the culpability and harm of the conduct in the sentence she imposed. In particular, it was submitted the respondent, who was an army officer and significantly taller and stronger than the complainer, used force to pin the complainer down and subjected her to repeated vaginal and oral rape and digital vaginal penetration with the judge focusing unduly on the complainer’s immediate reaction to the traumatic event which the trial judge suggested was not traumatic. It was further submitted that the complainer’s victim impact statement disclosed just how traumatic the incident had been for the complainer and the profound impact it had on the complainer’s work, her wellbeing and her enjoyment of life. On behalf of the respondent it was accepted that the sentence imposed was lenient but not unduly so. It was submitted that the sentence imposed was at the lowest point of the acceptable range but fell within it. It was conceded on behalf of the respondent that the trial judge’s view that the harm was towards the lower end of the scale could not be supported, however, there was significant mitigation available with the respondent’s pro-social background and impressive career in the army. Here the court allowed the appeal. The court considered that the trial judge did not have regard to all of the relevant factors in selecting the sentence she did. The court stated that, whilst there was significant personal mitigation, it was of limited significance when sentencing offences of this nature. Whilst the English sentencing guideline, which the trial judge referred to in her report to the court, does refer to “previous good character and/or exemplary conduct” as potentially mitigating factors the guideline also states that such mitigation should not normally be given and significant weight and will not normally justify a reduction in sentence. The court also noted that the trial judge had referred to the unsuccessful Crown appeal against sentence case of HMA v MG 2023 JC 68 and relying on the sentence imposed at first instance in MG was not appropriate as was stated in HMA v TJ 2024 JC 1. The court noted in the present case that the conduct involved two acts of rape which made the conduct more serious. The court considered that the trial judge erred in assessing harm as being “at the lower end of the scale” and also ought not to have used a draft guideline which was not in force and misapplied it in evaluating harm and also erred in her assessment of harm under reference to the English guideline as the offence was not within the lowest category. The court noted the harm done to the complainer having been diagnosed with PTSD and also having a number of personal difficulties with the court viewing the complainer as having suffered severe psychological damage as a result. The court quashed the sentence of 4 years and 6 months imprisonment and imposed a new sentence of imprisonment for 6 years and 6 months. In a post-script to the opinion the court made certain observations in relation to online dating platforms. The court stated that the fact the complainer and respondent met via an online dating platform was not an aggravating factor in relation to the sentence to be imposed. The court reiterated that consent must be given to the particular sexual conduct at the time of that sexual conduct and a person cannot “pre-book” consent prior to it taking place.