[2015] HCJAC 114


Lord Justice Clerk

Lord Bracadale

Lord Matthews











Appellant: Niven-Smith AD; the Crown Agent

Respondent:  A Ogg, Solicitor Advocate; JC Hughes & Co, Glasgow

26 November 2015

[1]        On 6 May 2015, at the High Court in Glasgow, the respondent was found guilty of 7 charges involving sexual offences against 2 of his former partners and their children.  The first (charge 1) was one of using lewd practices on various occasions against AdM, a boy aged between 9 and 10, in 2007-2008, including handling the boy’s penis, attempting digital penetration of his anus, compelling the boy to masturbate him and oral penetration of the boy with his penis.  The second (charge 2) was indecent assault, again on various occasions during the same time period, against the boy in the form of attempted sodomy.  The third (charge 7) was using lewd practices on various occasions against TD, a girl aged between 12 and 14, in 2008 to 2010, including digital vaginal penetration, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995.  In relation to the adult complainers, the fourth and fifth (charges 13 and 15) were libels of indecent assault against CD in 2008 to 2010 in the form, first, of one incident of continued penile penetration of the anus after the withdrawal of consent and, secondly, of penile penetration of the anus on various occasions.  The sixth (charge 18) involved anal rape of CD on various occasions from 2010 to 2013, contrary to section 1 of the Sexual Offences (Scotland) Act 2009.  The seventh (charge 19) was the anal rape of AM, his wife, on one occasion in 2013, contrary to the same statutory provision.

[2]        The trial judge imposed what ultimately amounted to an extended sentence of 7 years, with a custodial element of 5 years imprisonment.  This was made up from separate custodial periods for each charge, viz.: charge 1, 2 years; charge 2, 3 years concurrent; charge 7, 18 months concurrent; charges 13, 15 and 18, 2 years consecutive; and charge 19, 1 year concurrent with that on charges 13, 15 and 18.  The extended element related only to charges 13, 15 and 18.  The trial judge explains that, had he been sentencing on charges 13, 15 and 18 separately, he would have selected periods of 1, 2 and 2 years concurrent.


[3]        From 2006, the respondent was in a relationship with AM, who had 2 children, including AdM.  He lived with AM periodically in 2007 and 2008 and they had a child together.  Towards the end of 2008 all of the children became the subject of child protection orders.  Shortly after that, the respondent and AM were married.  Meantime, from 2009, the respondent had developed a relationship with CD, whom he described as his mistress.  She had a daughter TD.  The respondent stayed initially with CD overnight only occasionally, but came to live with her on a more frequent basis from 2011.

[4]        Following the grant of an application under section 275 of the Criminal Procedure (Scotland) Act 1995, evidence was led of the participation of the respondent and both adult complainers, who did not know each other, in the “swinging” (partner swapping) scene in Glasgow and Paisley.  There was evidence about the sexual promiscuity indulged in at swinging parties and the publication of many photographs of this conduct on social networking media. 

[5]        The respondent and AM had sex with various people at these parties.  The judge refers to AM as a person who “acknowledged few if any sexual boundaries”.  He quotes from her testimony about her sexual exploits, which provoked periodic “incredulous mirth” amongst the jurors.  The respondent and AM had consensual anal sex at home.  However, on one occasion, shortly before they separated, the respondent had returned home and told AM that he was going to have anal sex with her.  She had refused to participate, but he had then done so forcibly.  The trial judge describes the degree of force as “not great”.  The libel included injury, but the judge was not clear on whether there was evidence of this.  This rape was not reported to the police at the time.  The judge classified the level of criminality and level of harm suffered as “minor”, involving only “a transient sense of violation”.  He considered rape to be a species of aggravated assault and that this incident equated with an assault to injury which might have been prosecuted at summary level.

[6]        AdM described the events libeled in charges 1 and 2 as occurring “loads of times” in his home when he was aged only 9 or 10.

[7]        The respondent had met CD through an Internet dating agency.  The trial judge describes her as “sexually confident” in relation to her involvement in the swinging scene.  CD described an occasion when she had, at the respondent's request, agreed to try anal sex for the first time.  This had been on the basis that they would stop if it were painful.  It was painful, but the respondent had not stopped when asked to do so.  He had had anal sex with her on 3 or 4 occasions without her agreement.  None of the anal rapes were reported to the police at the time.  They would not have been reported but for the police inquiries.  Under reference to Stallard v HM Advocate 1989 SCCR 248 (LJG (Emslie) at 255), the judge refers to CD “condoning” or “acquiescing in” the rapes.  He refers to CD freely choosing to continue to live with the respondent after the rapes had occurred.  This he regarded as such “powerful mitigation” that he might have considered an admonition as an option, had the convictions involving CD stood alone.

[8]        TD spoke to being sexually pestered by the respondent in her bedroom on frequent occasions, when she was about 13, and being digitally penetrated by him when she was 15.  There were only 2 episodes involving physical contact.


[9]        The respondent was aged 44 at the time of sentence.  In terms of the Criminal Justice Social Work Report, he was assessed as at medium risk of re-offending.  He had continued to deny any sexual involvement with the children.  His own childhood had involved sexual abuse.

[10]      The trial judge acknowledges that the custodial element of the sentence which he imposed was “unlikely to be regarded as excessive”.  However, he states in relation to the children that he had regard to his:

“impression of the effect of the offending on [the children] and of the effect that more severe punishment might possibly have, taking into account the guilt that child sex abuse survivors are often said to experience, particularly where family and relationship break-up is involved.”


The trial judge had been impressed by both children.  AdM had forgotten his experiences, until the investigation had awakened his memories.  The judge did not regard TD as vulnerable, but rather “robust and knowing”.  He therefore attached little weight to her Impact Statement (not produced in the appeal).  He had discounted any element of breach of trust (as distinct from power) in relation to the children as no such aggravation was libelled.  A libel that AdM had been the respondent's step son had correctly been deleted. 

[11]      In relation to the adult complainers, the main thrust of the plea in mitigation was the impact of the offences against the background of general sexual promiscuity.  The judge describes the offences as “essentially non-violent relationship rapes”.  He reports that juries do not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences are disproportionate.  In this context, he challenges the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers in being raped, then subject to: (a) the investigative process, (b) the wait for trial, (c) the cross-examination, (d) a possible acquittal; and (e) a return to the community with the stigma of having been disbelieved.  The judge points to the spectrum of seriousness in rape sentencing as illustrated by Scottish practice and in the England and Wales Definitive Guideline (infra).  He asks whether there is a lower custodial limit for rape sentences.  He speculates that, but for the existence of 2 adult complainers and the libel of anal (as distinct from vaginal) penetration, no convictions would have followed.  However, whilst considering that the rapes were “at the lower end of the seriousness scale” he reports that he did not regard the respondent's relationships with the complainers as mitigatory per se.

[12]      The trial judge considered that the sentence was proportionate overall, in the sense of being “no more than is necessary”.  He had originally considered that either a custodial or an extended term of 8 years might possibly have been appropriate, but had revised his view in light of the mitigation.  The judge had regarded the respondent, who had not given evidence, as a “coward and a bully”, eking out “a benefit-grubbing existence ... sponging off women”.  He did not regard him as representing a risk to the general public, as distinct from a class of vulnerable women and their children.  The period of custody selected would suffice as a deterrent and the risk posed by the respondent would be managed during the years of supervision.


Note of Appeal and Submissions
[13]      The Note of Appeal contends that the overall sentence imposed fails to give adequate weight to the gravity of the crimes, the extended period over which they took place and the effect on the complainers.  The crimes against the children had been committed when the respondent had been in a position of trust and in their own homes.  They had involved force and threats.

[14]      Had the Definitive Guideline on Sexual Offences applicable in England and Wales been applied, a much higher sentence would have been imposed.  The anal rapes would have had a sentencing range of 4 to 7 years each, with a starting point of 5 years imprisonment.  The trial judge had had regard to the fact that the respondent had been in an ongoing relationship with the adult complainers.  The mitigatory impact of that circumstance had been judicially doubted (HM Advocate v Cooperwhite 2013 SCCR 461 at para [17] et seq).  In South Africa, it was provided by statute that a prior relationship between the offender and the victim did not constitute a “substantial and compelling ‘circumstance’ justifying the imposition of a lesser sentence.”  (Criminal Law Amendment Act 105 of 1997, s. 51(3)(aA)).  In New Zealand, “culpability is not reduced by any sense of entitlement associated with a current or previous relationship” (The Queen v AM [2010] 2 NZLR 750 at para [61]).  The Definitive Guideline (supra) did not list an ongoing relationship as a mitigatory factor.  However, culpability would have been diminished where there had been consensual sexual activity immediately prior to the offending (ibid para [54] and [55]).  The selection of 2 years as a custodial element for offences, all of which would now be classified as rape, was derisory.  The Crown did not, however, consider that guidelines were appropriate in this case, given the interaction of the adult complainer with those involving children. 

[15]      The conduct in relation to both children took place when the respondent had been in a relationship with their mothers.  He had been in a position of trust.  The oral penetration involving the boy would now be libelled as rape.  It would have attracted a sentencing range of 8 to 13 years, with a starting point of 10 years in England and Wales.  The offending relative to the girl would have had a range of 4 to 10 years, with a starting point of 5 years.  In both cases, it was not necessary to libel a position of trust.  It was sufficient that one had been proved.  It was an aggravating factor (see eg Definitive Guideline p 39; The Queen v AM (supra) at para [50]).  The judge had had no basis for his theories about feelings of guilt in abused children or for reducing any sentence on account of his impression of the robustness of the children. 

[16]      The appellant's written submission made reference to sentences in other Commonwealth jurisdictions, notably Canada, South Africa and New Zealand.  In each, the offences would have attracted much lengthier custodial terms.

[17]      The CJSWR had not been positive. It stated that the respondent had no insight into his offending or its consequences. There was no acceptance of responsibility or remorse.  The respondent was assessed as presenting a serious risk of harm, notably sexual violence, to any women, with whom he formed an intimate relationship, and their children.  He had been formally assessed as at medium risk of re-conviction for a sexual offence, although the author of the CJSWR thought that this was an underestimate.



[18]      The respondent stressed that the trial judge had heard all the evidence and had been best placed to make an appropriate assessment.  In that light, the sentence had not fallen outwith the range of reasonable disposals (HM Advocate v Bell 1995 SCCR 244; HM Advocate v Ross 1996 SCCR 107 and HM Advocate v Carpenter 1998 SCCR 706).

[19]      The material from outwith Scotland should not be taken into account.  Although Guidelines from England might be looked at in the case of offences defined in a United Kingdom statute, they should otherwise be treated with care because of divergent sentencing powers and practices (Gill v Thomson 2010 SCCR 922, at para [20]).  They should not be applied in a mechanistic fashion (Geddes v HM Advocate 2015 SCCR 230; Milligan v HM Advocate [2015] HCJAC 84).  They should not be used where the offence in Scotland was at common law and that in England was under statute (SS v HM Advocate [2015] HCJAC 63 at para [46]; HM Advocate v McManus [2010] HCJAC 3 at para [15]).  Even when both jurisdictions’ offences involve similar statutory provisions, care was required (HM Advocate v Roulston 2005 SCCR 193 at para [17]; HM Advocate v Graham 2010 SCCR 641 at para [24]).  It was evident from the Definitive Guideline that the English approach to sexual offences such as rape was relatively rigid and inflexible.

[20]      Although statute had re-categorised non-consensual oral and anal penetration as rape, the court had always treated these offences as serious (eg for sodomy Murphy v HM Advocate [2001] 25 GWD 958;  Morison:  Sentencing Practice at para N23.0004.1; Kelly v HM Advocate [1998] 18 GWD 922, Morison N23.0004.2; McGovaney v HM Advocate 2002 SCCR 762; cf. Carter v HM Advocate [1997] 28 GWD 1425, Morison N23.0006; and for oral penetration:  HM Advocate v Ross 1996 SCCR 107;  Adams v HM Advocate [2000] 29 GWD 1137, Morison N14.0007.1).  The redefinition of rape had not changed anything and no alternative to the pre-existing approach to sentencing was required.  It was evident that Scottish sentencing practice in relation to rape involved a flexible approach.  Sentences varied from 3½ years to life imprisonment (Morison (supra) ch N19).  In certain circumstances a non-custodial sentence could be imposed.

[21]      The sentences selected had not been unduly lenient.  The trial judge had noted that the offending against AdM had involved no actual anal penetration and those against TD had involved no penile penetration at all.  It had been a matter for the judge to assess the impact on the victims.  The offences involving the adult complainers had to be considered against their extraordinary background.  In relation to CD, any force had been minimal.  She would not have reported the incident to the police.  Her relationship with the respondent had continued.  The existence of a relationship both before and after the offences was relevant and significant.  It was indicative of the level of distress.  The occurrence of consensual sex before an offence was also a factor to be taken into account.  The respondent had no previous convictions and posed only a medium risk of future harm.


[22]      In his report, the trial judge has made a number of observations about the sentencing of sexual offences involving both children and adults.  Some of these may be regarded as controversial.  For example, there is his equiperation of rape to an aggravated assault.  Rape may often, if not always, be a crime of violence, but it is not an aggravated assault.  It is a separate crime involving the violation of a person’s sexual integrity.  It has, in that context, a separate sentencing regime.  In relation to the children, the judge expresses a concern about the negative impact a severe sentence might have on them, having regard to other cases in which such an impact may have occurred.  There is no basis for such speculation in this case, where the impression, which the judge was certainly entitled to hold, was of relatively robust teenagers getting on with their lives. 

[23]      The trial judge has also made some pithy remarks about prosecution policy, jury reaction and related matters.  It may be that others may share some of his thoughts, but many will undoubtedly not.  The short point is that, whatever a judge’s own views may be, he must sentence on the basis of the crimes of which the respondent has been convicted, albeit in the contexts in which these crimes have been committed, in light of current Scottish sentencing principles and practice.  He is entitled to have regard to sentencing guidelines in other jurisdictions, especially in neighbouring countries such as England and Wales.  However, such comparators must not be applied too rigidly (HM Advocate v AB [2015] HCJAC [106], LJC (Carloway) at para [13]).

[24]      In relation to the conduct libeled in charges 1 and 2, this included the repeated oral penetration and attempted sodomy of a 9 or 10 year old boy over whom the respondent was in a position of trust; a matter which does not constitute a formal aggravation of the offence requiring a separate libel.  The behaviour went on for a considerable period of time.  This degree of sexual abuse committed against a child of this age is rightly regarded as particularly serious.  That is so even if, as may be the position here, the child has coped with it in later years in a manner which might not otherwise have been anticipated.  Although the conduct in relation to the girl TD was more limited, it was still serious and significant, particularly when seen in light of the offending against the boy.  The offences against the children can be seen as a course of conduct which could (but need not) have been disposed of by a cumulative penalty.  In the modern era, even for an offender with no analogous previous convictions, a custodial sentence of at least 4 years would be appropriate for such lewd practices (see eg HM Advocate v Malley [2005] 12 GWD 207, Morison at para N14.0011.1; HM Advocate v Briody [2000] 29 GWD 1138, Morison N14.0009.1).

[25]      In relation to the rapes of the adult complainers, the obiter dictum in HM Advocate v Cooperwhite 2013 SCCR 461 (at para [17]) was intended to call into question the thinking in Ramage v HM Advocate 1999 SCCR 592 (at 594); and Petrie v HM Advocate 2012 JC 1 (at para [7]) to the effect that the existence of a prior relationship between offender and victim was per se a mitigatory factor.  The thinking included a comparison of so-called “stranger” rapes with those occurring in a domestic context.  Although regard might be had to the fact that a rape in the context of a relationship included a breach of trust, a sexual past was, it was said, still regarded as a matter to which substantial weight required to be attached.  In Coopewhite (supra at para [21]) the court drew attention to the contrary approach to “relationship rape” in England and Wales, notably the terms of the Sexual Offences Act 2003 – Definitive Guideline (2007) replacing the guidelines in R v Milberry [2003] 1 WLR 546 but establishing a general principle that the same starting point should be selected for “relationship” or “acquaintance rape” as for “stranger rape”.

[26]      It is at least clear that in England and Wales, the simplified new Definitive Guideline (April 2014) does not consider the existence of a previous relationship as either a mitigatory or an aggravating factor.  In Queen v AM [2010] 2 NZLR 750 the New Zealand Court of Appeal provides some helpful comment from another jurisdiction.  This is that, first, depending on the circumstances, culpability may be diminished where there had been consensual sexual activity immediately prior to the offending (see paras [54]-[60]).  This makes it clear that a complainer’s general sexual experience prior to being raped should not be regarded as a significant factor in gauging culpability.  Secondly, culpability is not reduced by “any sense of entitlement associated with a current or previous relationship … There is no separate regime for sexual violation of a spouse or partner or those who have previously been in a relationship” (ibid at para [61]).  That is not to say that the existence of a continuing relationship is irrelevant.  It may bear upon sentence in so far as it may (or may not) indicate the impact on the victim.  However, given the status of crime as a public wrong, the victim’s view, even if regarded as genuine, “normally cannot overwhelm the outcome” (ibid para [64]).

[27]      The court finds the general reasoning of the New Zealand Court of Appeal in this area as generally persuasive and reflective of modern thinking.  It follows that it considers that the trial judge has afforded too much weight to the past sexual experience of the complainers and to the existence of both prior and continuing sexual relationships.  Had the offences in charges 13, 15, 18 and 19 stood alone, a sentence in the region of 6 years might have been regarded as appropriate (see eg HM Advocate v Cooperwhite (supra) at para [15]).  However, since it is appropriate that these offences should attract a consecutive sentence to that imposed for the lewd conduct against the children, regard must be had to their cumulative effect.  In such circumstances, a consecutive period of 4 years is appropriate, to produce an overall custodial element of 8 years.

[28]      The court agrees that an extended sentence was appropriate, given that the respondent clearly poses a threat of serious harm to the public (notably women with young children).  However, the respondent is only 44.  He will be eligible for parole in advance of his 50th birthday.  In such circumstances, the period of supervision should be significantly longer than that considered appropriate by the trial judge.  The court will select a period of 4 years to produce an extended sentence of 12 years.  The appeal is accordingly allowed.