Community sentence for rape of a 13 year old

What I see is that there is no guidelines for rape. There is one for youth in Scotland but barely anything else.

Sentencing is extremely complex because you balance all the factors. But, and it is a massive issue, both the defence and the prosecution had to make submissions to guide this judge.

On the basis of that, the prosecution in Scotland did a bad job. They could not secure a custodial sentence for multiple rape. This is the same court that approves sentencing guidelines for Scotland.

Who is to blame? Is it a sentencing council with a slow work rate? A prosecutor who can't persuade a well educated judge that rape is serious? Is it a revision of the scope of the youth guidelines that means rehabilitation is prioritised?

I think it's all of these things. There is no clear guidance as to the weighting of culpability and harm for judges, and so the actual purpose of sentencing guidelines, of which there are none for any specific offence in Scotland, and little oversight has created this mess.

In England and Wales, because there is offence guidelines, and relevant statutory tests, you can make clear submissions to deal with this and it is effective.

Scotland has none of that. That is dire.

Judges get it wrong. In England & Wales, more than two sentences a week are increased due to the judge giving an unduly lenient sentence originally. And to say yet again, the guidelines say that jail can be used where no other sentence is appropriate. The argument, therefore, is that this is clearly a crime where no other sentence is appropriate, and the judge got it wrong.

I'm sorry to do this to death but it seems sentencing guidelines in England and Wales are very different from Scotland.

In England and Wales, the relevant guidelines for rape will place a sentence between 4 to 19 years imprisonment. That is, you can go to prison for life, and the starting point to sentence an offender is custody for 4 years.

In Scotland, there are no finished guidelines for rape or sexual offences. There are only the general guidelines for young people and the general principles.

In the 8 years since it's creation by the Scottish Government the Scottish Sentencing Council has produced three sets of guidelines which deal with sentencing generally. These guidelines do not, unlike others, do the difficult work of weighting seriousness, culpability and harm in a proportionate way. This may explain in part the result in this case.

Also, if it's so simple, why is one of Scotland's top judges getting it so wrong?

That is btw a serious question. That judge had to be persuaded to give that sentence and should have had submissions from both the prosecutor and the the defence. The defence did better it seems.

So someone screwed up here. In saying a sentence is unduly lenient, you still have to use the legal tests and the guidelines to make that argument.

Of course the submission would not be that short, but that is the argument.

Culpability goes to sentencing, not to guilt. The defence will be appealing on the basis that the conviction is unsafe and trying to get the conviction thrown out.

Assuming the Crown Office appeals the sentence, which I hope they will, they will do so on the basis that the sentence is unduly lenient. To the extent that the guidelines enter into this, the Crown Office don't need to argue against the guidelines at all. If the court wants them to argue the guidelines, all they need to do is argue that this is an offence where nothing other than a custodial sentence is appropriate and therefore, entirely within the guidelines, the judge could and should have sent the defendant to jail.

That's a very short set of submissions! About a sentence. I've done a few of these and we tended to make our sentencing submissions a bit longer than a sentence!

It is unduly lenient because an offender should be in prison for this offence. It really is that simple. You are overcomplicating this unnecessarily. Is community service an appropriate sentence? No. That is all the Crown Office need to argue.

A lot depends on the culpability of the offender - I note the defence are thinking about an appeal of the conviction itself. Presumably that is because the culpability is in question. That would, on the basis of the guidelines and the offenders age at the time of offending, make a big difference. Then the judge could say, this doesn't cross the threshold for custody and the offender can be rehabilitated in the community.

Also, the judge is not exactly an idiot - Scotland's High Court has the best judges. Sentencing guidelines were intended in part to deal with cases of rape in the case in England where a judge on sentencing decided that a burglar who raped a girl in the house during the burglary didn't need anything further by way of punishment.

It is consequently perverse that you have a case nearly fifty years later which means rape doesn't cross the custody threshold for an offender.

That doesn't make sense. If it's unduly lenient then you are saying prison is required. If prison is needed, then why? The offender presents a risk? Or they need to be punished?

You don't argue the purpose directly- the Crown Office would have to say something about how this offender should be managed. They can't just say this wasn't enough, they have to make a positive case and say where the judge got it wrong to do that.

No, they really don't have to argue for punishment as a purpose. The youth guidelines say that rehabilitation is a primary consideration, but they don't take away punishment as a purpose. They say the court should, where appropriate, seek to rehabilitate. They do not say the court should seek to rehabilitate in all situations. And they are clear that a custodial sentence can still be used where no other sentence is appropriate, which is surely the case here.

The Crown Office simply needs to argue that this sentence is unduly lenient. Having heard from my Scottish friend, I think they will win, although it is, of course, impossible to be certain.

If you read the applicable guidelines you can see a clear clash. The youth guideline arguably overrides the general principles guideline on seriousness (harm and culpability). That seems not to have been thought about in the context of offending which a serious crime like rape.

In other words, this sentence could be totally reasonable because the youth guideline now demands and effectively prioritises rehabilitation above punishment as a purpose.

The Crown Office will now have to argue for punishment as a purpose, against the guideline which the policy of the Scottish Government and approved by the Scottish Sentencing Council, or maybe they can argue this rapist is a sufficient risk to the public that he needs to be jailed.

I hear from one of the lawyers involved that the defendant in this case is slightly inadequate and immature, which goes to mitigation, but no-one saw this coming. They cannot believe that he hasn't been sent to prison.

I agree this is a somewhat irrelevant argument. On topic, my view is that the judge has got this badly wrong. The judge should have decided that this is a situation where no sentence other than jail is appropriate. The sentencing guidelines do not prevent the judge from making such a decision. I hope the Crown Office decides to appeal on the grounds that the sentence is unduly lenient.

I'm sure all of that will be of much comfort to the girl and her family....

Well yes, madness

Indeed, but the Crown Office is considering whether to appeal the sentence.

I hope the sentence is overturned-this guy deserves prison

I'm a former Scottish defence lawyer and I, and many of my contemporaries, find this 'extraordinary'. Also, he is appealing the conviction, not the sentence.

It does have purposes set by the Sentencing Council based on the Act of Parliament I quoted. I admitted that I had misunderstood that the relevant clauses were actually included in Scottish law rather than the Sentencing Council using them as the basis for the purposes of sentencing in Scotland. As I said earlier, I am not from Scotland.

I have no idea what you mean when you say that sentencing is done on the age of the offender. In England & Wales, the sentencing guidelines apply equally to all offenders over the age of 18. There are a number of offences where legislation sets a reduced sentence if the offender is under 21. Apart from those, you don't get a lighter sentence simply for being younger. You do get a lighter sentence if you have no previous relevant convictions and, of course, that is more likely to apply to a younger offender. And there are some offences where the age differential between the offender and the victim is taken into account. If you believe there are sentencing guidelines that specifically take age into account other than as required by legislation, perhaps you can point them out.

As for the functional difference, it isn't difficult. A judge in England &Wales must follow the sentencing guidelines. They can only impose a sentence below the minimum specified in the guidelines if they can show that the minimum sentence would be contrary to the interests of justice in this particular case. Absent such reasons, they must follow the guidelines. A judge in Scotland is only required to "have regard" to the sentencing guidelines. Unlike England & Wales, they are not required to follow them. If the judge wants to go below the minimum, they can give any reason they want - that the prisons are too full or that they don't agree with the guidelines, for example, neither of which would be acceptable in England & Wales. The same is true for going over the maximum.

In England & Wales, a sentence can be challenged purely on the grounds that it is outside the sentencing guidelines. In Scotland, that is not enough to challenge a sentence.

@Greenfairydust i think you should learn how to read 🙄

I'm not sure I rate your expertise on this because someone familiar with sentencing law would know that sentencing in Scotland did not have purposes, which you claimed it did in an Act of Parliament, and yet you also seem not to know that sentencing is done on the age of the offender.

Perhaps you'd like to explain the functional difference between a departure in Scotland and one in England and Wales on sentencing guidelines. How is it different?

In all honesty, I don't think either the Scottish government or the Sentencing Council for Scotland intended this outcome. I think this is exactly the kind of crime where they expected the judge to conclude that no other sentence apart from prison was appropriate.