W.A. v. Her Majesty’s Advocate [2015] HCJAC 105

Note of appeal against sentence:- On 23 March 2015, at Edinburgh High Court, the appellant was convicted after trial of the following 4 charges:- (1) repeated contravention of Section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995, namely, statutory lewd, indecent and libidinous behaviour and practices towards his daughter, ‘SA’; (2) repeated rape of his daughter, ‘SA’; (3) repeated contravention of Section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995 perpetrated against another complainer, ‘LM’; and (4) the rape of ‘LM’. The appellant was sentenced to five years imprisonment on charge 1 and ten years imprisonment on charge 2, ordered to run concurrently. The appellant was sentenced to five years imprisonment on charge 3 and six years imprisonment on charge 4, ordered to run concurrently with each other and consecutively to the sentences imposed in relation to charges 1 and 2, resulting in a total period of 16 years imprisonment. The appellant appealed against the sentence imposed on the grounds that it was excessive. It was submitted on his behalf that:- (1) the appellant had no previous convictions and the sentencing judge gave insufficient weight to that; (2) the sentencing judge gave insufficient weight to the period of time the appellant had awaited trial as he had initially been interviewed in 2008 and the trial did not take place until 2015 and there had been a breach of the trial within a reasonable time requirement; and (3) the cumulative effect of the sentences had produced an excessive total sentence. The sentencing judge had described the appellant as “a calculating and predatory individual”. Here the court considered the circumstances of the case, in particular, a timeline that had been provided to the court in relation to the contention that there had been unreasonable delay. Some of that detailed information had not been available to the sentencing judge and the court here considered that the trial judge did not take sufficient account of that delay when sentencing the appellant. The court viewed the conduct of the appellant as extremely serious and given that it involved two complainers it was conceded on the part of the appellant that consecutive sentences were appropriate. In the circumstances the court decided that the cumulative effect of the sentences resulted in an excessive overall sentence, particularly as the appellant had no previous convictions, and allowed the appeal in respect of charge 2, quashing the sentence of ten years imprisonment and substituting a period of eight years imprisonment. In relation to charges 3 and 4 the court quashed the sentences and imposed concurrent sentences of 4 years for both charges to avoid the overall sentence being excessive so the overall sentence was reduced to 12 years.