We no longer have hanging judges in Scotland.
Instead we have judges who should hang their heads in shame.
When a man who rapes a 13-year-old girl is handed a community payback order instead of a jail sentence then Scots Law – once supposedly the envy of the world – has instead become a worldwide laughing stock.
Sean Hogg, now 21, was 17 when he raped a 13-year-old girl in a park at Dalkeith on various occasions in 2018.
At the High Court in Glasgow the judge, Lord Lake, said: “This offence, if committed by an adult over 25, would attract a sentence of four or five years.”
He went on: “I don’t consider that appropriate and don’t intend to send you to prison. You are a first offender with no previous history of prison – you are 21 and were 17 at the time.
“Prison does not lead me to believe this will contribute to your rehabilitation.”
But prison isn’t just about rehabilitation.
It’s also there to punish, and crucially as the French say, “pour encourager les autres”.
Prison is there to deter, to warn, to send a message, to those who might contemplate carrying out such a despicable crime, as Hogg did on a 13-year-old girl.
This joke of a sentence sends a message alright; that women and girls are fair game for men aged below 25 with rape on their mind, because the consequences of violating a young girl or woman and leaving them traumatised for the rest of their lives will be picking up litter for six weeks as payback.
Rape sentence is ‘extraordinary’
The supposed punishment has been condemned by many, including Rape Crisis Scotland.
The key issue here is around the guidelines for sentencing under-25s introduced in Scotland in January 2022.
They made rehabilitation, rather than punishment, a primary consideration, recommending an “individualistic approach” which takes into account the life experience of the accused.
This may have been well meaning. But the law of unintended consequences surely applies here.
I’m sure the Scottish Sentencing Council, which recommended this “individualistic approach” to under 25’s wanted to be seen to be fair and enlightened.
They surely couldn’t have intended that one of the most serious crimes in the land would attract the sort of punishment you might expect for breaking a shop window, while also treating the victim with contempt
A leading King’s Counsel Tommy Ross KC said the 270-hour community sentence was “very unusual”
Mr Ross, who has worked on major cases, told BBC’s Good Morning Scotland programme he had never known a case like it.
He said “it is an extraordinary sentence,” adding: “I have been working in the High Court for around 20 years and I have never seen anybody avoid prison for rape until yesterday.”
Sentence must match the crime of rape
At the root of this insult to victims is the idea of assessing how much of a bearing a young person’s maturity has on their culpability for a crime.
NEW: Speaking to reporters in Aberdeen today the new FM @HumzaYousaf was asked if he was concerned about the sentencing of Sean Hogg – a community payback order for the rape of a 13 year old. @LBC @LBCNews pic.twitter.com/Ikc5Jhupyk
— @GinaDavidson (@ginadavidsonlbc) April 4, 2023
Issues like childhood trauma are to be factored into a court’s decision.
That might be well and good when it comes to minor crimes. But repellent crimes, such as rape, cannot be treated in the same way as common or garden offences like vandalism or theft.
On the one hand we’re expected to buy the idea that in some folk the brain doesn’t fully mature until the age of 25, while allowing 16-year-olds to vote, marry, be parents, pay tax, and play a full part in all aspects of life.
Yet on the other hand, we’re supposed to accept that these young people should be treated differently by the law when it comes to the most heinous of crimes.
I’ll be astonished if the Crown doesn’t appeal this insult to justice.
