Source: BBC News
A community sentence handed down to a man who raped a 13-year-old schoolgirl when he was 17 has been described as “extraordinary” by a leading KC.
Sean Hogg, now 21, attacked the girl in Dalkeith Country Park, Midlothian, on various occasions in 2018.
Judge Lord Lake said that if the offence had been committed by an adult over 25, Hogg would have received a jail sentence of four or five years.
Tommy Ross KC said the 270-hour community sentence was “very unusual”.
Hogg’s punishment has also been condemned by opposition politicians and described as “inexplicable” by Rape Crisis Scotland.
First Minister Humza Yousaf said he sympathised with the reaction but stressed that sentencing was a matter for the judiciary.
New guidelines for sentencing under 25s were introduced in Scotland in January 2022.
They made rehabilitation rather than punishment a primary consideration, recommending an “individualistic approach” taking into account their life experiences.
The KC said: “It is an extraordinary sentence.
“I have been working in the high court for around 20 years and I have never seen anybody avoid prison for rape until yesterday.”
Sandy Brindley, chief executive of Rape Crisis Scotland, expressed concern about the message such a case sent out.
Speaking on BBC Radio Scotland’s Drivetime she also criticised the fact it took four years to come to court.
Ms Brindley said: “Of course the role of the justice system should be about rehabilitation, but there also needs to be a sense of it giving some sense of justice for victims of crime.
“I just don’t see how this sentence can do that.”
On the prospect of the sentence being overturned, she told the programme: “It is hard to imagine a case more deserving of that judgement of unduly lenient than the rape of a 13-year-old girl.”
This case is one of the most vivid examples yet of the Scottish courts’ new approach to dealing with offenders aged under 25.
Under the guidelines, the sentence must be “fair and proportionate” and take into account “the level of culpability (or blame) and harm”.
Particular regard has to be given to rehabilitation and when the offender is under 18, their best interests must be a primary consideration.
Lord Lake felt rehabilitation was possible and prison would not help Hogg turn his life around.
Such an approach will always attract criticism from opposition politicians who believe the Scottish government is soft on crime – but Rape Crisis Scotland also expressed grave concern, saying it may discourage other victims from coming forward.
Prosecutors at the Crown Office are deciding whether to appeal against Hogg’s sentence on the grounds that it was unduly lenient, but can only do so if they think the judge has strayed outside the range of sentences he could reasonably impose.
If the Crown decides against an appeal, it will mean they accept that the judge was entitled not to jail Hogg.
And if Hogg’s sentence stands, it could happen again in other rape cases.
A precedent will have been set.
BBC Scotland requested and obtained a copy of the judge’s sentencing notes, which detail the reasoning behind the sentence.
Lord Lake told Hogg rape was “one of the most serious crimes” and noted the effect on his victim was likely to be “marked and long lasting”, especially given her age and apparent vulnerability.
But he said the rapist’s age was an “important factor”.
The judge pointed out that it had taken four years for the case to come to court.
He said he had sentenced Hogg as if he had still been a teenager, when he would have been considered “less culpable, less blameworthy”.
While he had to consider punishment and deterrence, Lord Lake said rehabilitation was “the primary consideration”.
He told Hogg: “It does not seem to me that imprisonment is the way most likely to lead to your rehabilitation.”
A social work report said that Hogg did not have an easy upbringing, and that he had mental health difficulties and a history of substance misuse.
Lord Lake said the report suggested that rehabilitation would be possible.
Scottish Conservative justice spokesman Jamie Greene has called for a review of the sentencing guidelines.
He said offenders under 25 were now “routinely wrapped in cotton wool”.
Mr Greene said it was “shameful” that the needs of a criminal had been placed above those of a victim, and added: “This young girl will be scarred for life by this horrendous attack.”
First Minister Humza Yousaf said he could understand the strength of feeling, but that it was “really important that I don’t say any more because my understanding is that the Crown is considering a potential appeal to that sentence”.
Asked if the sentencing guidelines should be reviewed, Mr Yousaf said it was important that such matters were determined by the judiciary.
He also said the focus on rehabilitation should not be overshadowed by one case.
“I am committed to rehabilitation but I can understand why people have concern about the sentence that has been given in this case,” he added.
Court papers stated Hogg, of Hamilton, South Lanarkshire, threatened the girl, seized her by the wrists and forced her to carry out a sex act before raping her.
He was found guilty by a jury and appeared for sentencing at the High Court in Glasgow on Monday.
Lord Lake told Hogg that if the offence was committed by an adult over 25, they would attract a sentence of four or five years.
As well as 270 hours of community work, Hogg was also put under supervision and on the sex offenders register for three years.
Donald Findlay KC, defending, told the court an appeal was planned.
A spokesperson for the Crown Office said it would consider whether it felt the sentence might be unduly lenient.