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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 21
HCA/2023/108/XC
Lord Pentland
Lord Doherty
OPINION OF THE COURT
delivered by LORD PENTLAND
in
APPEAL AGAINST SENTENCE
by
DOREL SIMION
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Culross; Faculty Services Limited
Respondent: Trainer, advocate depute ad hoc; Crown Agent
6 June 2023
Introduction
[1]
The appellant was convicted after trial in the High Court in Glasgow of two offences
of rape, contrary to section 1 of the Sexual Offences (Scotland) Act 2009; the crimes were
in August 2020 and June 2021. Both offences were perpetrated against victims who were
2
intoxicated and incapable of consenting. The second rape was committed at a time when
the appellant was on bail for the first.
[2]
The trial judge imposed a cumulo sentence of 10 years' imprisonment, 6 months of
which she attributed to the bail aggravation.
[3]
A co-accused on the second charge had pled guilty at the outset of the trial. He
received a sentence of 5 years and 6 months' imprisonment, discounted for the plea from
6 years.
The facts
[4]
The first rape occurred after the victim, a middle-aged woman who was extremely
drunk, had joined a group of men including the appellant, who were sitting outside a block
of flats. The victim was on her own. She spent some time with the men and it would have
been obvious to them that she was heavily intoxicated. As she left the group the appellant
went after her. The rape took place on open ground and two witnesses saw the victim lying
on the ground while the appellant put his penis in her mouth. Police found the appellant
hiding nearby.
[5]
The second rape, some 10 months later, involved a young woman of 18 years. She
too was very drunk and incapable of consenting. The appellant (who was himself drunk)
and the co-accused, acting in concert, seized hold of the victim, took her to some bushes,
and repeatedly raped her vaginally and orally.
The appellant's submissions
[6]
In support of the appeal it was submitted that the cumulo sentence was excessive. It
was accepted that the offences were serious, but it was said that the sentence imposed was
3
too long. The appellant had no analogous previous convictions. He had a settled family life
and a good work record. The trial judge had given insufficient weight to these factors.
[7]
Reliance was placed on the case of Ibbotson v Her Majesty's Advocate 2022 SCCR 265
where the appellant had been convicted of two rapes against separate complainers in 2017
and 2019. The offences were prosecuted on different indictments. The appellant was
sentenced in October 2020 to 5 years' imprisonment for the first rape and after a subsequent
trial in 2022 to 6 years' imprisonment for the second rape, the latter sentence being ordered
to run consecutively to the first sentence. Three months of the second sentence was
attributed to a bail aggravation and 3 months to an aggravation under section 1 of the
Abusive Behaviour and Sexual Harm (Scotland) Act 2016.
[8]
The appeal court observed that the interests of justice did not require the
two sentences to duplicate the same purposes of punishment, deterrence, protection of the
public and rehabilitation. The total punishment in that case was held to exceed what could
reasonably have been expected if both crimes had been prosecuted on the same indictment.
The court quashed the sentence of 6 years and substituted for it a sentence of the same
duration, but ordered that it should run from 1 September 2022, the date on which the
appeal was heard. It is important to note that by that date the appellant had served nearly
the equivalent of a 3 year sentence in terms of the sentence imposed on the first indictment.
It follows that the real effect of the court's decision was that the total punishment for the
two offences equated to 9 years' imprisonment, only one year less than that imposed in
the present case. Moreover, whereas Mr Ibbotson's offences were committed when he was
aged 22 and 24, the appellant's were committed when he was aged 28 and 29. In these
circumstances, we do not consider that Ibbotson lends any material support to this appeal.
4
[9]
Reliance was also placed on the headline sentence of 6 years selected by the trial
judge for the co-accused. It was said that this demonstrated the duplication of sentencing
purposes in the overall cumulative sentence imposed on the appellant. We confess that
we had some difficulty in understanding this submission. The co-accused faced only a
single charge and in his case there was no bail aggravation. The sentence selected for the
co-accused does not in any sense support the proposition that the sentence imposed on the
appellant for the two rapes was excessive.
[10]
While it was acknowledged that the second rape involved a breach of bail by the
appellant, it was argued that as the appellant had no previous analogous convictions the
total sentence was excessive on a cumulative basis. Punishment had been double counted.
Decision
[11]
We are satisfied that the sentence of 10 years' imprisonment was not excessive.
These were each serious offences in their own right, deserving of substantial punishment.
The appellant raped two highly vulnerable victims when they were incapable of consenting
as he would have been fully aware. The second rape was aggravated by being committed
while the appellant was on bail for the first charge. The appellant's conduct on each
occasion was predatory and displayed a deplorable lack of respect for his victims, each of
whom were subjected to very degrading sexual attacks. The criminal justice social work
report disclosed that the appellant had little insight into the impact of his offending. We do
not consider that there has been any element of double counting in the approach taken by
the trial judge or that there has been duplication of sentencing purposes. We are entirely
satisfied that the cumulo sentence of 10 years' imprisonment was not excessive in view of the
gravity of the offences.
5
[12]
The appeal is refused.
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