V.E. v. Her Majesty’s Advocate [2018] HCJAC 12

Note of appeal against sentence:- On 23 June 2017, at Glasgow High Court, the appellant was convicted after trial of the repeated rape of a 5 year old girl contrary to section 18 of the Sexual Offences (Scotland) Act 2009 (charge 1) and the repeated sexual assault of a 7 year old girl contrary to section 20 of the Sexual Offences (Scotland) Act 2009 (charge 2). Following the obtaining of a Criminal Justice Social Work Report the appellant was sentenced to 6 years detention in relation to charge 1 and 1 years detention in relation to charge 2, to be served concurrently. The appellant appealed against his sentence on the grounds that it was excessive, albeit it was conceded that a sentence of detention was appropriate in light of the gravity of the offences. It was submitted on behalf of the appellant that the trial judge erred in stating that the appellant had demonstrated a level of planning by isolating the complainers and perpetrating the offences whilst in a position of trust. It was further submitted on behalf of the appellant that the trial judge had given insufficient weight to the fact that at the time of the commission of the offences the appellant was a child, aged 14, and at the time of the conviction he was aged 15. It was submitted that the need for punishment and retribution was less when the offender was a child and the need for rehabilitation was more important. It was further submitted that that the appellant met the complainers through his sister who was friendly with the girls who came to play in the appellant’s house and there was no evidence to suggest that the appellant had engineered the situation as had been suggested by the trial judge. Here the court allowed the appeal. The court considered that on the particular circumstances of the case there was no basis for the trial judge to assert that the appellant had shown any planning or premeditation. In addition, the court considered that insufficient weight had been attached to the best interests of the appellant which should be the primary consideration when a child is to be sentenced. The court referred to what was said by the court in Adam McCormick v HMA [2016] SCCR 308 where the welfare of the child offender and the need to rehabilitate and reintegrate the child into society are paramount. As a result court quashed the sentence of 6 years detention in relation to charge 1 and substituted a sentence of 3 years and 9 months detention. The sentenced of one years detention to be served concurrently in relation to charge 2 remained the same.