John Falconer v. Her Majesty’s Advocate [2019] HCJAC 42

Note of appeal against sentence:- The appellant was convicted after trial at the High Court of a number of charges including:- (1) the repeated anal and vaginal rape of his then partner during November and December 2015 contrary to section 1 of the Sexual Offences (Scotland) Act 2009; (2) the anal and vaginal rape of a different partner on an occasion in July 2017 contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (3) on a different occasion the rape of the same partner contrary to section 1 of the Sexual Offences (Scotland) Act 2009. Following the obtaining of a Criminal Justice Social Work Report incorporating a risk assessment re an extended sentence and having sight of a psychiatric report instructed by the defence the sentencing judge imposed an extended sentence of 11 years comprising of a custodial element of 8 years and an extension period of 3 years. The appellant appealed against the sentence imposed on the grounds it was excessive. It was submitted the judge gave insufficient weight to the fact the appellant was a service veteran with a diagnosis of PTSD. The CJSWR made reference to that PTSD resulting in the appellant having difficulties in interacting with others, in understanding himself and to him having issues with understanding his emotions and his psychological experiences and the author of the report suggested that the sexual activity had became a form of coping mechanism. The report concluded that there was a high risk of further sexual reoffending and a medium risk of violent recidivism. It was noted that the PTSD had never been properly treated since his return from Afghanistan. The psychiatric report produced referred to the appellant having a particularly traumatic experience in Afghanistan in 2010 which had impacted on the appellant significantly. It was submitted that the sentencing judge had given insufficient weight to the diagnosis of PTSD and to the fact that following his return from tour he had used illegal drugs as a coping mechanism which had resulted in his discharge from the army in 2011. It was submitted that prior to his discharge there had been no previous offending. The PTSD was diagnosed in 2014, however, at that time proper medication and treatment was not being received for PTSD and the appellant committed a number of offences. It was submitted that since the appellant started properly treating the PTSD there had been a reduction in the risk factors and the risk of recidivism referred to in the CJSWR was reduced. It was also submitted that there were emotional difficulties between the complainer in charges 2 and 3 and the appellant during the course of their relationship which was not assisted by the absence of proper treatment for the PTSD. In all of the circumstances it was submitted the sentence imposed was excessive. Here the court refused the appeal. The court stated that a sentence as was imposed in the present should be regarded as a standard sentence for the nature and type of offending seen. The court noted that the sentencing judge did have regard to the diagnosis of PTSD, albeit the judge had formed the view that it was clear the appellant was likely to present a danger to women having regard to what was said in the CJSWR and also the nature of the repeated rapes. The court noted that in relation to the PTSD there was nothing within the terms of the psychiatric report to address the causal link between PTSD and the repeated rapes of the two complainers. The court noted that, provided the appellant continued to receive the proper treatment for PTSD, then it may be that he would gain release from custody at the earliest opportunity, however, the court was obliged to have regard to the obvious risk the appellant presented and the diagnosis of PTSD did not reduce that risk.