Earlier this year, Sean Hogg, aged 21, was convicted by a jury of raping a 13-year-old girl when he was aged 17. He had no previous convictions. He was sentenced in the High Court at Glasgow to a Community Payback Order with a requirement that he carry out 270 hours of unpaid work. He was placed under supervision for the maximum permitted period of three years and made subject to the notification requirements under the Sexual Offences Act 2003, colloquially known as the Sex Offenders’ Register, for the duration of the supervision requirement. In sentencing Hogg, Lord Lake observed that he was obliged to have regard to the Scottish Sentencing Council’s Sentencing Young People Guideline (SYP) which states that a custodial sentence should only be imposed on a young person if the court is satisfied that “no other sentence is appropriate”. Lord Lake told Hogg that “rape is one of the most serious crimes” and had the crime been committed by someone aged 25 or over, it would have attracted a sentence of “four or five years”. He is further quoted as saying that he did not consider that sentence to be appropriate or that imprisonment would contribute to Hogg’s rehabilitation.
The sentence has proved controversial. It is, on the face of it, extremely lenient. It appears to emphasise the needs and interests of the offender over impact of the crime on the victim and the wider public interest. The decision is an example of the difficulties caused when what is undoubtedly a well-intentioned sentencing policy with a strong evidence base is applied in real life.
The Crown Office and Procurator Fiscal Service announced on 28th April 2023 that they are to appeal against the sentence on the grounds that it is unduly lenient. This decision is welcome because, although, as is discussed below, the outcome of the case is far from certain, it will give the High Court of Justiciary the opportunity to issue an authoritative judgment on the correct interpretation of SYP.
The Crown’s power to appeal against an unduly lenient sentence.
The Criminal Procedure (Scotland) Act 1995 s 228A grants the Lord Advocate the power to appeal against a sentence imposed on a person convicted on indictment if it appears to them that the sentence is unduly lenient. The operative word is ‘unduly’ which is not defined. It is not enough that the Appeal Court considers that it would have imposed a more severe sentence had it dealt with the case at first instance. In H.M. Advocate v Bell 1995 SLT 350 at 353, Lord Hope stated that, if the appeal is to have any prospect of success, the Crown must have grounds on which to persuade the Appeal Court that the sentence imposed fell “outside the range of sentences which the judge at first instance applying his mind to all the relevant factors could reasonably have considered appropriate”.
If the appeal is to succeed therefore, the Crown must do more than assert “He raped a 13-year-old child. Of course, he should have been imprisoned”. The Appeal Court must be persuaded that the Community Payback Order imposed on Sean Hogg was out with the range of sentences which the judge, taking account of all relevant factors, could reasonably have imposed. Non-custodial sentences for rape and attempted rape are exceedingly rare, but they are not unheard of. Between 2016-17 and 2019-20, eight offenders received Community Payback Orders and two were given Restriction of Liberty Orders, one was admonished and six received an absolute discharge. The most recent figures from 2020-21 show that all 73 persons convicted received custodial sentences. Therefore, community-based sentences are within the range of penalty that the courts may and do impose.
In addition, the Crown will require to show that Lord Lake erred in the exercise of his professional discretion and his application of the Guideline. Scottish sentencing law is contained in various Acts of the UK or Scottish Parliaments, and in reports of previous cases heard by the courts. Sentencing Guidelines drafted by the Scottish Sentencing Council and approved by the High Court of Justiciary are relatively new to Scotland. There are currently three in force in Scotland: on the Principles and Purposes of Sentencing, the Sentencing Process and Sentencing Young People, which applies to any offender aged 16 or over but under the age of 25 sentenced on or after January 26th 2022.
Section 6(1)(a) of The Criminal Justice and Licensing (Scotland) Act 2010 requires courts, as Lord Lake noted, “to have regard to any sentencing guidelines which are applicable to the case.” (Emphasis added). One reason why Lord Lake’s decision has proved controversial is that he could, with good reason, have decided that no other sentence than a custodial one was appropriate in all the circumstances of the case. Furthermore, section 6(2) grants the sentencer the discretion not to follow a guideline, but they must state the reasons for the decision. Therefore, Lord Lake’s hands were not tied by the terms of SYP. He reached the conclusion based on his professional judgment that a custodial sentence would be inappropriate. In sentencing Sean Hogg therefore, Lord Lake was required to apply the general law on sentencing and have regard to three guidelines.
The core principle of sentencing in Scotland is that sentences must be “fair and proportionate”. This requires inter alia the court to consider all relevant factors in assessing the seriousness of the offence, the impact on the victim and others affected by the crime and also the circumstances of the offender. Also, sentences must be no more severe than is necessary.
The Sentencing Process Guideline sets out the steps the court must take when sentencing offenders. The first is to assess the seriousness of the offence which is determined by assessing the culpability or blameworthiness of the offender together with the harm caused. SYP gives advice on assessing the culpability of a young person and, in essence, states that a young person should normally be deemed less culpable than an adult sentenced for a comparable offence. The court then must look to The Sentencing Process Guideline which states that harm includes the impact on any victim or victims, which should, presumably, be a major consideration when the victim is a child, as she was in the Hogg case.
Having determined the seriousness of the crime, SYP states that the court should, where appropriate, select a sentence designed to rehabilitate the offender and reduce the risk of reoffending. A sentence should also be structured to enable the young person to comply with it, understand the consequences of their behaviour, address the underlying causes of the behaviour, and reduce the risk of reoffending.
SYP is firmly focused on the circumstances of the young person and the effect of the sentence on them, rather than the need for public protection, punishment or the expression of society’s disapproval of the behaviour, all of which are listed in the Principles and Purposes Guideline. While SYP concedes that the full range of sentencing options remain open to the court, it emphasises that “the nature and duration of a sentence imposed on a young person should be different from that which might be imposed on an older person” (Para 20). The implication is that the young person should be sentenced differently from someone aged 25 or over. Para 21 further states that a court should only impose a custodial sentence on a young person if it is satisfied that “no other sentence is appropriate”. Where a custodial sentence is imposed, it should be shorter than that which would have been imposed on an older person.
Much could turn on the Appeal Court’s interpretation of “appropriate”. In most cases other than murder, a non-custodial sentence is likely to be available to the offender. Undoubtedly a non-custodial sentence is more beneficial to the offender and, in some situations, it might contribute to their rehabilitation, but that does not necessarily mean that a non-custodial sentence is appropriate.
Central to one notion of justice is that a person who has been convicted of an offence deserves to be punished and should face the consequences of their actions. If the punishment has the effect of achieving rehabilitation and desistance from crime, then that is an added benefit. For some, rightly or wrongly, the Community Payback Order does not appear sufficiently punitive or an adequate punishment for what the judge accepted is one of the most serious crimes; a crime where the victim was 13 years old.
The decision to appeal against Sean Hogg’s sentence is to be welcomed even though the Crown face an uphill task in persuading the court that Lord Lake erred in the exercise of his professional discretion and in his interpretation of SYP. Had the Lord Advocate chosen not to appeal it might have dissuaded future complainers from reporting alleged rapes and other sexual offences to the police. It is easy to see why a complainer would be reluctant to engage with the criminal justice process if, after waiting sometimes for years to give evidence and facing hostile cross examination in court, they see the accused found guilty only for the court to appear more concerned with needs of the offender than the impact on their victim, the need to protect the public or the need to express society’s disapproval of such conduct by punishing the offender simply because they were under the age of 25 at the time they were sentenced.
Even if the appeal is unsuccessful, it is to be hoped the Appeal Court will take the opportunity to give guidance on the application and interpretation of SYP and how it interacts with other Guidelines. An authoritative judgment would be especially welcome now that the Scottish Sentencing Council has embarked on drafting offence specific guidelines such as its draft Guideline on Causing Death by Driving. It might also serve to prevent a stream of appeals against sentence on the grounds that the court did not pay sufficient heed to the central aims of SYP.