Act: McClure, Solicitor; McClure Collins, Edinburgh

Alt: Ogg Q.C., A.D.; Crown Agent

12 September 2007

[1] The appellant pleaded guilty on 22 December 2005 in the High Court to the following charge:

"On 15 May 2005 at the B7003, Roslin to Rosewell Road, Midlothian, you did assault [EMVDL], c/o Lothian and Borders Police, Dalkeith, and did seize hold of her, throw her down an embankment, repeatedly push her, repeatedly force her onto the ground, repeatedly grab hold of her and drag her along the ground, sit on her, threaten her with a knife, handle her breasts, ask her if she was a virgin, repeatedly strike her on the face all to her severe injury and danger of her life, and did rape her".

[2] At the sentencing diet the sentencing judge imposed an extended sentence of seventeen years, comprising a custodial term of ten years reduced to twelve to reflect the plea of guilty, and an extension period of seven years.

[3] As will be the seen, the crime to which the plea was tendered was one of rape and was committed in the following circumstances.

Background to the Offence - Complainer

[4] The date of the offence, 15 May 2005, was a Sunday. As she was not working that day the complainer decided to visit some local tourist attractions, including Rosslyn Chapel. At about 2.45 p.m. she boarded a bus on Princes Street to go to Rosslyn Chapel. As the weather was good, she got off the bus at a stop before Roslin, intending to walk to the village. However, she got lost on the way and therefore did not arrive at the chapel until 4.45 p.m., by which time it was closing and too late to visit.

[5] She then decided to phone her friend who was still at work. Her friend invited the complainer for dinner to her house in Bonnyrigg. As the friend would not get back from work until some time later, the complainer decided to walk from Rosslyn Chapel to her friend's house. The route she took was through Roslin Glen, along the B7003 Roslin to Rosewell Road, Midlothian. That is where the attack took place, at a part of the road where it climbs through woods along a steep slope out of the Glen.

Background to the Offence - Appellant

[6] Meanwhile the appellant, Robert Greens, had finished his work for the day on the peat farm at about 3.15 p.m. He had gone to a number of pubs with his work colleagues and then on to his parents' house in Penicuik. When he left at about 5.30 p.m. he was going to his sister's house in Newtongrange. He drove his dark blue Rover car along the B7003 Roslin to Rosewell Road, Midlothian.

Incident

[7] As the complainer was walking along the road to her friend's house she was noticed by a passing driver who then saw the car in front of him veer across the opposite lane and pull in at a lay-by. This was the appellant's Rover. By this time it was shortly after 6.00 p.m.

[8] Moments later another driver also noticed the complainer and the appellant, who had by now got out of the car. They were now about fifty metres apart and walking towards each other.

[9] The complainer first saw the appellant when he was about ten metres from her. As he approached her, there was nothing to cause her alarm. However, when he reached her, without warning he grabbed her by the arms and threw her down the steep embankment that bordered the road. She slipped down, unable to get a foothold, and he followed her down, repeatedly pushing her further away from the road. The complainer was shouting, screaming and struggling desperately. She tried to get back to the roadway but, when she did so, he pushed her back down. At one point she broke free and tried to scramble up the embankment but the appellant grabbed her ankles and pulled her back towards him.

[10] In the end, the complainer was pushed to the ground, face down. The appellant sat on her back and told her to stop screaming because he had a knife. The appellant then asked her if she was a virgin. The complainer describes the appellant as hissing at her, sounding agitated, when talking to her. At this point the complainer realised that she was going to be raped and felt in fear for her life. She therefore decided to stop screaming and fighting. At this, the appellant put his hands under her body and touched her breasts through her clothing.

[11] The complainer does not recalled being turned over, but the next thing that she remembers about the incident is that she was lying on her back with her legs apart and the appellant lying between them having sexual intercourse with her. She turn her face to the left as she did not want to look at him while he was raping her. During the attack the appellant repeatedly struck her to the right side of her face. By now all she wanted was for the attack to be over and for the appellant to leave her. The complainer does not remember anything else about the attack, the appellant stopping or leaving her, or indeed anything else until she was in the ambulance, where she had to ask a paramedic what day it was.

After the Incident - Complainer

[12] At about twenty past six, the complainer was seen standing at the side of the road by a passing motorist. She could see from her car that the complainer's face was bloody and swollen and that there were twigs in her hair, so she stopped to help. From the complainer's appearance, she initially thought that she had been hit by a car. She called 999 but was so distressed that another passer-by had to take over the call. The complainer was in shock but able to speak, saying that she thought she had been raped but repeatedly saying "this isn't happening". In due course the police and ambulance arrived.

Medical Evidence (Books of Photographs 2)

[13] On arrival at the Accident and Emergency Department, the complainer was found to have substantial bruising and gross swelling to the right side of her face, so that the right eye was swollen shut. Later examination of the eye revealed haematoma in the eye itself. A two centimetre laceration to her nose was glued. There were multiple scratch marks and abrasions to her abdomen and legs. Although she did not recall details of the attack, by the time she reached hospital she was described as alert and oriented.

[14] On genital examination by the forensic medical examiner, she was found to have swelling, superficial abrasions and punctuate bruising. There were no obvious tears and no bleeding.

[15] The nature of the attack, which involved injuries to the head and ended with The complainer being abandoned in a remote location, meant that her life was at risk. However, although she remained in hospital overnight for observations due to the head injuries, she made a good physical recovery and was discharged the next day. Although she was referred to a maxillofacial surgeon, by the end of May her vision was found to be normal and the only finding was a slight depression of the zygomatic arch in her cheek, which caused no cosmetic or function deficit other than discomfort in cold weather.

[16] The ongoing psychological effects of the incident upon the complainer are referred to below.

After the Incident - Appellant

[17] Following the attack, the appellant went back to his car and drove to his sister's house in Newtongrange, staying for only five minutes before going back to his own home. His wife noticed new scratches on his arm, but he stated that he had received these while at work.

Police Involvement

[18] The link to the appellant was first made via DNA found on the complainer's pants, which were found discarded at the place where the attack had taken place. This was found to match the appellant, but also his identical twin brother. However, the brother lives in Fort William and was able to provide the police with an alibi. Police investigations confirmed that he had been in Fort William at the time of the offence.

[19] The appellant was detained on 27 May 2005. When cautioned in connection with the rape allegation he replied "you're joking".

[20] At interview, he stated that he had travelled home from Penicuik by bus that day and not by car. He said that he had not travelled through Roslin Glen on the evening in question and flatly denied having seen the complainer, far less attacking her.

[21] However, by the time of judicial examination, he admitted that he had been alone in his car at the relevant time.

Impact of Crime

[22] The complainer first saw the injuries to her face in a mirror at the hospital and she broke down in tears. In the days following the attack she covered the mirrors in her house so her face would be hidden from view. Although she initially felt physically weak and sore, the bruising and pain subsided over time, leaving only a scar on her nose as tangible evidence of the attack.

[23] However, the psychological effects have been more persistent. In September 2005 her GP reported that she was still mentally in severe disorder. Before the attack she was a bright and independent girl who set off from her home in the Netherlands to the UK to spend a year, during which time she indulged a passion for hill-walking by trekking both Offa's Dyke and the Pennine Way unaccompanied and living under canvas. Since the attack her personality has changed. She now finds that she has lost confidence in herself. She was afraid to go out of the house alone, and even now she does not feel able to go out at night alone, or to hill walk alone. Even when accompanied, she feels anxious each time a male walks towards her. In daily life, a loss of perspective means that minor mishaps, such as misplacing a key, can cause disproportionate distress which leaves her inconsolable for hours or even days. Since the attack she has found it hard to make decisions, to solve problems and to deal with the minor setbacks which occur in daily life. She has recently taken steps to address this by starting to consult a psychiatrist but at present she still regularly breaks down in tears.

[24] It is observed that the complainer, who is Dutch, had no acquaintance or knowledge even of the existence of the appellant until the crime was committed in a remote area, without any apparent motive save a sexual one.

[25] In presenting the appeal Mr McClure, Solicitor Advocate, challenged the decision of the sentencing judge both on the starting point of twelve years for the custodial term and also on the question of discount in respect of the appellant's guilty plea.

[26] With regard to the former point, he submitted that the aggravations, apart from the obvious crime of rape, in the indictment to which the plea was tendered and in particular in relation to danger of life, were at the lower end of the scale. He submitted that the complainer's life was never really in danger, she was not in hospital for any length of time and that therefore the sentencing judge had started the process at too high a point at twelve years.

[27] However the appeal argument before us turned rather more on the question of discount.

[28] Mr McClure argued that there were good reasons why the plea was not presented until it was, namely not far before the trial diet. Those included an alleged lack of memory on the part of the appellant as to what had happened, an attempt on his part to blame his brother who was a twin and could be said to have similar DNA which therefore made it essential to have a DNA report before any question of pleas could be considered and also the fact that the appellant had tendered at least at the preliminary diet a special defence of alibi. All these factors, Mr McClure submitted, explain why the plea had come when it did and should therefore be taken into account in increasing, so he argued to us, the discount that the judge imposed.

[29] Before turning to the particular aspects of this case, we will wish to make two general observations.

[30] There is currently within the media and political circles, considerable discussion about the crime of rape and the apparent lack of convictions in relation to recorded or reported incidents alleging the crime. It is therefore very important that it be understood that although the crime of rape in itself is easily identified in the context of overcoming a woman's consent in respect of sexual intercourse, the circumstances in which that can happen vary enormously from what could be described as an amorous sexual encounter that has got out of control at one end of the scale to at the other an appalling attack on a woman by a complete stranger, unprovoked and without justification.

[31] There may be reasons why in relation to the former set of cases convictions are difficult to obtain. When it comes to the latter type of case, of which this is one and in this respect the plea of guilty has avoided a trial, it has to be recognised in the public domain that the courts will not tolerate this type of aggressive sexual conduct, to put it at its least, when imposing sentences. If it is appropriate, and we have some hesitation whether it is, to scale the gravity of the crime of rape, this particular offence has to be placed at the highest level of it.

[32] We say that for two basic reasons.

[33] Firstly, as we have already stated, the victim was on her own and in a relatively remote area and was attacked without notice by a complete stranger in a most brutal and aggressive way, quite apart from the sexual content. Such is apparent from the narrative presented by the Crown.

[34] More importantly, the traumatic effect upon her has been apparently enormous and continues. We were shown photographs by the Advocate Depute which are frankly horrific in terms of the facial injuries to the young lady, to say nothing what else she must have suffered mentally. They go far beyond what might on one view be described as necessary for a rapist to achieve his sexual gratification.

[35] Separately, and also important, this court requires to record that the reasons for late pleas, however well balanced, do not go to increase the amount. We are not at all sure in this case that the reasons have, in any event, much merit having regard to the various tacks that the defence took during the currency of the procedure in relation to, for example, alibi and the alleged involvement of the appellant's twin which could have significant DNA implications if he is an identical twin. The policy behind giving discounts for pleas of guilty has a number of facets which we do not at this stage propose to rehearse but, the later the plea in the process of the case, the less likely it is that the court should be required to allow a large discount. The person who qualifies for the highest discount is he or she who recognises their guilt from the outset and pleads, for example, by section 76 notice within a reasonable time of that recognition. This court will not be influenced with regard to the level of discount by reasons given as to why a later plea was taken at the particular time it was tendered. All the more so, a plea tendered on the morning of the trial will attract, if any, a modest discount for the reasons given in Du Plooy.

[36] Returning to the present case, this in our opinion is one of the worst cases of rape this court has had the misfortune to encounter for some time, when not connected also with murder. We are not impressed with the arguments presented by Mr McClure with regard to the aggravations, for example in relation to risk of life. We are much more concerned by the extreme traumatic effect that we understand the events have had upon the victim and appalled by the photographs that we were shown. Therefore it cannot be said that the starting point of twelve years was in any way inappropriate or excessive.

[37] As regards to the question of discount, without rehearsing what we have already said, the longer this case went on once the indictment was served, whatever may be the reasons, the more the unfortunate victim must have been subjected to a recurrent recollection but also, almost more importantly, the fact that it was becoming less and less clear whether she would have to give evidence. The fact that she did eventually not have to give evidence is, and we use the word loosely, to the credit of the appellant but that credit has to be reflected only modestly for the reasons we have tried to explain. His reasons for the delay in pleading are not relevant.

[38] In these circumstances we are entirely satisfied that the sentencing judge in setting the starting point for the custodial term at twelve years reflects no more than an acceptable sentence. A higher one could easily have been contemplated. The discount of two years more than reflects the factors that we have tried to take into account, namely that there has to be some recognition for the plea of guilty but in this case not much more than that. Finally, there is no challenge to the extension period of the sentence.

[39] In all these circumstances this appeal is refused.