APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lady Smith	[2012] HCJAC 119 XC273/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by JAMES TOUGH Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Renucci; Thorntons, Arbroath

Respondent: Small, AD; Crown Agent

1 August 2012

[1] On 30 March 2012 at Edinburgh High Court, the appellant, who is aged 23, pled guilty at a continued preliminary hearing to the sexual assault and rape of KB, aged 12, on 20 May 2011 by penetrating her mouth with his penis, penetrating her vagina with his finger and causing her to masturbate him; contrary to sections 18, 19 and 20 of the Sexual Offences (Scotland) Act 2009.

[2] The circumstances in brief were that, on the evening of the date libelled, the complainer was in a park in Arbroath along with a few friends aged between 13 and 16. They were all drinking alcohol and were joined shortly afterwards by the appellant. By that time the police had been on the scene and had confiscated the alcohol from the group. Eventually the group went to the appellant's aunt's house at his invitation, partly because he was aware that the house would be empty. On the way to that house there were signs of affection between the complainer and the appellant. Alcohol consumption continued at the house and eventually the complainer, who was by that time under the influence of alcohol, was taken to a bathroom by the appellant and the events libelled then took place. The terms of the agreed narrative were that the complainer did not want any of these things to happen to her, but she did not inform the appellant of this. She said that she went along with what the appellant had wanted because of the amount of alcohol she had consumed.

[3] On 25 April 2012 the appellant was given an extended sentence of six years and nine months; with the custodial element being three years and nine months. The latter had been discounted from a headline sentence of five years.

[4] The appellant has a very low IQ, which is assessed at 66 and thus in the extremely low disability range of intellectual functioning. On the other hand he is able to live on his own. He has a number of previous convictions, but these have all been dealt with at summary level.

[5] It was submitted primarily that, in all the circumstances but in particular having regard to the appellant's level of maturity and intellectual functioning, a custodial sentence was not the only appropriate disposal available. Particular focus was placed on the relative maturities of the complainer and the appellant, which set the circumstances in a different position from one where a person aged 23 offended against a person aged 12. In the alternative it was submitted that the sentence selected by the judge was excessive.

[6] The court considers that, on the facts of this case, which did not involve penile penetration, custody nevertheless remained the only appropriate sentence. However, the court has little difficulty, having regard to the relative maturities of the complainer and the appellant, in determining that the starting point selected by the judge was excessive. This court will take as a headline custodial element one of three years. It will reduce that for the early plea to one of 27 months. It will also adjust the extended element of the sentence to one of two years thus making the extended sentence in total one of four years and three months.

DAW