HMA v SAN LEE

At the High Court in Edinburgh on 29 July 2014 Lady Wolfe sentenced San Lee to four years and six months in prison after he was convicted of rape.

29 July 2014

On sentencing Lady Wolfe made the following statement in court:

“San Lee, you have been convicted of a charge of rape, contrary to section 1 of the Sexual Offences (Scotland) Act 2009.

The charge related to events occurring more than two years ago, and which took place at some point in the early hours of the morning in April 2012.

The complainer had been at a nightclub drinking with friends and fellow students celebrating the end of exams. The visit to the nightclub had followed a period of drinking earlier that evening in the company of friends in the flat of one of these friends.  This form of socialising and the large  amount of drink taken is not unusual among students and others of a similar age.  On the evidence, the complainer had had quite a lot to drink. On the evidence, you were aware of this that evening.

The complainer was unknown to you. There was no evidence to indicate that you had met the complainer in the nightclub. The available CCTV evidence discloses that the complainer left the nightclub first, and alone, but that you followed her out a minute or so later. The next available CCTV footage shows you in her company and steering her toward your minivan.  You both entered the minivan and after some minutes you drove away to a place unknown. At some point later that evening, and at a point when the jury concluded that the complainer was by reason of her level of intoxication incapable of giving her free agreement or consent to sexual contact, you nonetheless had sexual intercourse with her. That amounts to rape, the crime of which you now stand convicted by verdict of the jury after trial.

The modern statutory law of rape is designed to protect those who are vulnerable and incapable, for example by reason of intoxication, from being taken advantage of and being subject to unwanted or unconsented sexual conduct.  The sentence I will impose must reflect the criminality of that conduct.

The young student you have been convicted of raping has no memory or active recall of a period from about the point when she left the nightclub until some four hours later when she awoke in the minivan, in a strange place and with a stranger in the van with her. She has not provided a victim impact statement.  It was clear from her evidence, however, that she did not expect to find herself, and did not intend to place herself, in such a position. It was also clear that she suffered considerable distress at the contemplation of what she is told had happened, and she suffered considerable further distress at revisiting the events of that evening in the course of her evidence at trial. It is to her credit that she has sought to get on with her life after those distressing events, and that she is a productive member of society.

In relation to your own personal circumstances, you have no previous convictions either in the UK or in your native country, the Republic of  Korea.

You have resided in the UK, for about 10 years without incident or otherwise coming to the notice of the police. In relation to the last several years, you have been in employment for much of that in England. You live with, and support, your mother. You have produced to the Court a large number of letters of support from friends, family, employers and work colleagues. These all speak to your general good character and your capacity for hard work. Many express disbelief that you are capable of sexually offending behaviour.  Notwithstanding these letters, however,  you have been found guilty by a  jury after trial of the crime of rape, committed when your victim was simply incapable of giving her consent.

At the conclusion of your trial, I wished to have the benefit of a Pre-Sentence Report. I have now considered its terms. Among other things, it is apparent from that Report that you continue to deny responsibility for the rape of which you have been convicted. The Report also notes that you pose a high risk for further offending in this  kind of behaviour.

 Your defence Solicitor Advocate has specifically asked me to   disregard those matters in the Report that are speculative or inconsistent with the evidence at trial, and instead to have regard your behaviour on the evening in question as opportunistic. He has also asked that I give little weight to the risk assessment recorded in that Report.

I have taken into account all that has been said on your behalf, and have had regard to all of the factors advanced on your behalf by your defence Solicitor Advocate. I have read the Pre- Sentence Report in the light of those comments. I have also taken into account the length of time that has passed since the events in question and the occurrence of the trial.

You did not give evidence at your trial. But as I have already noted, in terms of the Report and as confirmed by your defence Solicitor Advocate today,  you continue to deny the criminal conduct of which you have been convicted. As a consequence, you have expressed no remorse for the wrong you have done or the harm you have caused to the complainer. It was accepted on your behalf that this may reflect a continuing lack of insight by you of your behaviour.  This is a cause for concern and something that you should address during the period of imprisonment that you will serve.

The crime of which you have been convicted  is very serious and has the features I have already described. Society has an abhorrence of such conduct  and the modern law of rape clearly sets out to protect those who are vulnerable, including those temporarily incapacitated by drink from being capable of  consenting to sexual contact, from opportunistic  and unwanted sexual contact. It is the responsibility of this Court to reflect that. It is important that those who might be disposed to commit the crime of rape against a vulnerable woman, while wholly incapable through intoxication of giving consent, in the way that you did, understand that they are likely to receive significant custodial penalties once brought to justice. I am satisfied that in your case, there is no appropriate alternative disposal to one of imprisonment.

The sentence I impose for the rape of this vulnerable young student is 4 years and six months.

I have already made an order that you be subject to the notification requirements of the Sexual Offences Act 2003. In the light of the sentence I have just imposed, that requirement will be continued for an indefinite period of time. The clerk of court will provide you with a notice of the requirements with which you must comply.

You have been on bail in the period leading up to trial, and while sentence was deferred. The sentence of imprisonment I have imposed will accordingly run from today’s date”.