Teenage rapist's sentence condemned as 'not justice'

Rape victims have condemned the decision not to jail a man who raped a 13-year-old schoolgirl when he was 17.

Sean Hogg, who is now 21, carried out the attacks on the girl in Dalkeith Country Park, Midlothian, on various occasions in 2018.

He was ordered to do 270 hours of unpaid work after being found guilty.

Denise Clair, who brought a civil case against two footballers, said the case was an "embarrassment to the Scottish justice system" and was "not justice".

And Ellie Wilson, who has campaigned on behalf of victims since her rapist was jailed last year, described the sentence as "inadequate".

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.

First Minister Humza Yousaf said he understood the concerns which had been expressed, 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.

Ms Clair, who waived her right to anonymity after David Goodwillie and David Robertson were ruled to be rapists in 2017, said the case was "deeply alarming".

She told BBC Radio Scotland's Drivetime programme that the sentence was "an embarrassment to the Scottish justice system and extremely deflating for victims.

"Rape has the same devastating and lifelong impact regardless of the offenders age.

"Where is the deterrent and what message does this send out? This is not justice."

Ellie Wilson added: "I think it is absolutely appalling, an insult.

"All it is going to do is discourage victims and survivors from wanting to come forward.

"I do not see how it is appropriate to hand down a community payback order for rape, there are some crimes - rape being one of them - which require adequate punishment, and that punishment can only be in prison."

Tommy Ross KC, who has worked on major cases including the murder of Margaret Fleming, described it as "an extraordinary sentence".

He said: "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.

"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," she said.

"I just don't see how this sentence can do that."

The Crown Office has said that it will consider whether to appeal against the sentence on the grounds that it was unduly lenient

Ms Brindley said: "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" and said the public reaction was "understandably furious".

Mr Greene added: "I share their anger. The so-called punishment of a community payback order is a total insult to the victim in this case, who will be scarred for life by these attacks.

"Judges' hands are being increasingly tied as they have to follow guidelines which effectively say adults under 25 should not be going to prison unless all other avenues have been exhausted."

First Minister Humza Yousaf said he could understand the strength of feeling, but was reluctant to say more as he understood the Crown was considering a potential appeal to the sentence.

He added: "I am committed to rehabilitation but I can understand why people have concern about the sentence that has been given in this case."

The Scottish Sentencing Council said the guideline was based on "robust, independently-assessed evidence from around the world into the cognitive development of young people".

But a spokeswoman added: "The guideline makes it clear that the full range of sentencing options remains open to the court, including imprisonment."

The council also confirmed it was currently developing a guideline on sentencing rape offences, which will include a full public consultation.

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 had denied the charge.

Donald Findlay KC, defending, told the court an appeal was planned.