HMA v David Cunningham

At the High Court in Glasgow today, 13 March 2019, Lord Armstrong sentenced David Cunningham to 14 years’ imprisonment after the accused was found guilty of charges of repeated rape and sexual assault.

On sentencing, Lord Armstrong made the following statement in court:

“David Cunningham, you have been convicted of five charges, the evidence in relation to which disclosed a course of conduct systematically pursued by you against three women. In total, your criminal conduct extended over a 14-year period from December 2000 until October 2014.

“In relation to the first of these women, for over three years, you repeatedly and regularly raped her. Her evidence was that you did so regularly one or two times per week, and that you used force against her to achieve that, to the extent that she routinely had bruising on her upper arms and on her thighs.

“In relation to the second woman, for some three-and-a-half years, you regularly and repeatedly raped her in her own home. Her evidence was that you did so on a nightly basis, and that you used force to achieve that, as a consequence of which she too routinely sustained bruising to her upper arms. On one occasion, you assaulted her and locked her out of the house, in her underwear, in snowy, wintry conditions.

“In relation to the third woman, during a period of more than three years, you repeatedly sexually assaulted her. She too routinely sustained bruising to her upper arms, but also to her breasts, and to her inner thighs as the result of the force you used against her.  On one occasion, you physically assaulted her, compressing her throat to the extent that she thought she was being strangled.

“You were well aware of the particular personal circumstances of these women and their vulnerabilities. On the evidence at your trial, your conduct towards them, for the purposes of your own sexual gratification, was controlling and coercive.

“I have taken account of everything said on your behalf, and I have also had regard to the content of the criminal justice social work report now made available to me.

“Each of the women concerned has completed a victim impact statement, the terms of all of which clearly and emphatically confirm, unsurprisingly, that the crimes you committed against them have had a significant and lasting detrimental effect on their health and the quality of their lives, emotionally and psychologically.

“I have taken full account of the mitigation expressed on your behalf.  I note that you are now 60 years of age, and that you have been assessed as being at a low risk of re-offending.

“I have taken into account the favourable terms of the letters of reference and support which have been provided to me.

“I note your personal and family circumstances. I note that you have the continuing support of your partner, and friends and colleagues. I have noted the detail of your employment history.

“The criminal justice social work report indicates that, with one exception, you continue to deny your guilt of these crimes, refuse to take responsibility for what you have done, appear to lack any significant remorse or concern for the victims of your crimes, and have very little insight into the effect of your crimes on those concerned. However, I note what has been said in that regard this morning, to the effect that you have now reflected on these matters and that your appreciation of them has changed.

“However, these crimes of which you have been convicted are disturbing and grave.  It is the responsibility of the court to recognise that society will not tolerate such conduct, and it is important that those who might be disposed to commit such crimes against women, in the way that you did, understand that they are likely to receive significant custodial penalties once brought to justice.

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

“I note that you have no previous criminal history. I am satisfied, however, that in your case there is no appropriate alternative to a custodial sentence. 

“Had I been considering sentence in respect of these charges separately, then, having regard to all of the factors to which I have referred, and having regard to the fact that the sexual offending of which you now stand convicted was repeated and sustained over an extended period of time, I would have imposed in respect of charge 2, concerning the repeated rape of the first woman, a sentence of period of imprisonment of 10 years; in respect of charge 5, concerning the repeated rape of the second woman, a period of imprisonment of 12 years; in respect of charge 7, the charge of assault of the second woman, a period of imprisonment of two years, in respect of charge 8, concerning repeated sexual assault of the third woman, a period of imprisonment of five years; and in respect of charge 9 , concerning physical assault of the third woman, a period of imprisonment of two years.

“Although, arguably, there would be some justification for doing so, I consider that to make these sentences consecutive would result in an aggregate sentence which was disproportionately excessive. I intend therefore to impose on you, in respect of charges 2, 5, 7 and 9, a single cumulo sentence of a period of imprisonment of 14 years.

“I impose a sentence of five years imprisonment in respect of charge 8, to be served concurrently with the sentence imposed in respect of the other charges. I am satisfied that such an approach reflects the totality of the criminality concerned in all of these charges.

“Accordingly, the total sentence which I am imposing on you is one of a period of imprisonment of 14 years. That period of imprisonment will be backdated to 8 February 2019, that being the date when you were first detained in custody in relation to these charges.

“I shall also make an order that you be subject to participation in the Moving Forward: Making Changes programme, while in custody or, as considered appropriate, following your release.”