The respondent was convicted of raping a 19-year-old woman in his hotel room. He was sentenced by the trial judge to a four-year custodial sentence. The Crown appealed the sentence on the basis that it was unduly lenient. 

At trial the court heard that the respondent had met the complainer on a dating site where he pretended to be a 23-year-old doctor. The respondent was 35 years old at the time. Messages were exchanged and they agreed to meet at a hotel in Stirling. Whilst in the hotel the complainer advised that she had to use the toilet. The respondent told her that the hotel bar toilets were closed and that she should use the toilet in his room. 

The complainer came out of the toilet the respondent gave her a mug. He advised her that the mug contained pink gin. The complainer told the court that after drinking the contents of the mug she went in and out of consciousness. During the course of this she was raped by the respondent. When she returned home she contacted police and injuries were found. 

The Crown argued that the sentence imposed did not protect the public or express disapproval for this type of behaviour. It was submitted that the sentence was not reflective of the gravity of the offence or the degree of premeditation. It was also argued that the sentence did not reflect the vulnerability of the complainer and the nature of the incident. 

It was argued on behalf of the respondent that there was no evidence that he had brought the gin and Viagra with the intention of sexually assaulting the complainer. It was submitted that the public were protected as he would be unable to resume practice as a GP and would be made subject to notification requirements for an indefinite period. 

In providing the opinion of the court, Lady Dorrian said: “We accept that as a result of her condition the complainer would be more vulnerable to being taken advantage of, and less able to assert herself than she might otherwise have been. We question, however, whether it is exactly correct to say, as the Crown submitted, that her circumstances were therefore such as to render her ‘particularly vulnerable to even greater harm than is likely to be suffered by other victims of a similar offence’. There is nothing in the circumstances to suggest that she was vulnerable to greater harm from the offence than a non-intoxicated person would be.”

Lady Dorrian concluded: “Using the Guideline as a cross-check, we consider that it would not be appropriate to classify it as other than in category 3B, which has a range of 4-7 years, and a starting point of five years. On that basis the sentence selected by the trial judge can be seen to be lenient, but not excessively so, and the appeal must fail.”