HMA v CH 2017

A man who was sentenced to three years and nine months’ imprisonment after pleading guilty to raping a child and also filming the rape on his phone has had his sentence increased following an appeal by the Crown after it was deemed was deemed as “unduly lenient”. For the appeal to succeed the sentence must fall “outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate”, which was satisfied in this case.

The sentencing judge imposed a sentence of three years and nine months’ imprisonment for all charges, discounted by s196 from five years to reflect the guilty plea. The respondent was also made subject to the notification requirements under the Sexual Offences Act 2003 indefinitely. However, the Crown lodged an appeal against sentence on the ground that it was unduly lenient. The advocate depute Mr Prentice QC submitted the sentence “failed to recognise the gravity of the offences”.

Reference was also made to the Sexual Offences Definitive Guideline issued by the Sentencing Council in England and Wales, which would suggest a starting point of 13 years’ imprisonment in an offence of this gravity and nature. Applying the above test, it was argued that it could not be said that a sentence based on a headline figure of five years’ imprisonment was unduly lenient.

The appeal judges concluded that the headline sentence was “not only a lenient one but an unduly lenient one”. Lord Brodie said: “In concluding that it was unduly lenient we have been particularly influenced by the fact that the respondent recorded a moving image of his rape of the complainer.”

Therefore this was seen as an aggravating factor. The sentencing judge’s sentence was quashed and a sentence of six years’ imprisonment in respect of charge 002, based on a headline sentence of eight years discounted by the same percentage adopted by the sentencing judge was imposed.

A separate sentence in respect of charge 003 was also given, of 24 months’ imprisonment, that being based on a headline sentence of 32 months, again discounted by a guilty plea.