HMA v THOMAS McLAUGHLIN

At the High Court in Glasgow Lord Glennie imposed an extended sentence of 4 years on Thomas McLaughlin after he pled guilty to attempted rape on 11 September 2010.

On sentencing Lord Glennie made the following statement in court:

“You have pled guilty to a charge of attempted rape on the night of 11 September last year.

Rape is a very serious offence, and so is attempted rape.  Nothing I am going to say should be thought to take away from that.

But every case which comes before the court for sentence must be dealt with on its own facts.  Those are to be taken principally from the agreed narrative of events. 

It is clear from that agreed narrative that there are a number of factors which distinguish this from many cases of rape or attempted rape which come before this court.  Two in particular need to be emphasised:

  • First, there is your youth – you were only 17½ at the time, only some 7 months older than the complainer who was nearly 17
  • Second, there is the fact that, to begin with, the complainer was clearly happy with what was going on between you – you were both kissing in the club and she was happy with that – she came with you of her own free will to the grass near the car parks and was happy to carry on kissing there – and she did not at first say anything to discourage you when you tried to get her to lie down. 

Both you and the complainer had been drinking heavily that night.  It is not suggested that you were a habitual drinker.  But you went out drinking once a week or so, and this was one of those nights.  You were both intoxicated.

Despite it all having been consensual to begin with, there came a point when the complainer made it clear that she wanted you to stop.  She started to shout and scream.  Yet you carried on against her will, pushing or holding her down in a rough and forceful manner, touching her intimately and attempting to rape her.  It was fortunate for her (and for you) that you were disturbed and ran away.  We cannot know how far you would have gone if you had not been disturbed. 

I accept, despite what is said in the Social Enquiry Report, that there was probably no element of planning in what happened.  There is no evidence that when you led her to the grassed area you had any intention of raping her.  No doubt you believed for a while, rightly or wrongly, that she was willing to have sex with you.  Those were the signals that you thought, rightly or wrongly, you were getting.  But there clearly came a point when you knew that was not the case and yet you persisted in carrying on against her will.  That, as you have accepted by your guilty plea, is attempted rape, and must be punished.

I have read a statement by the complainer’s mother which speaks to the effect this incident has had on her daughter.  Statements such as this are not tested like other evidence.  But I accept that the complainer has been affected badly and has withdrawn into herself.  I cannot say whether there are other contributing factors, but your conduct was clearly the major cause of this.  This court can only hope that she is able to return to her studies and, in time, resume a normal life. 

A sentence of imprisonment or detention must be regarded as almost inevitable in a case of attempted rape. 

I have listened carefully to all that has been said on your behalf, and I have read the social enquiry report which, despite making certain assumptions about your conduct which I do not consider are justified either by the agreed narrative or anything contained in the report, does not put you at high risk of re-offending.  I have considered the various options put to me by your counsel, including a lengthy period of probation, linked with community service and a restriction of liberty order.

However, I can see no alternative to a custodial sentence here, if only to serve as a reminder

  • that no means no, whatever might have gone on before, or been understood before, and
  • that drink is no excuse for failing to understand that. 

I am conscious that you are still only 18, and you have no previous convictions of any kind.  Nor does it appear that you have even been in trouble before.  You come from a good home, with a supportive mother, and you are in a stable relationship with a girlfriend who, I am told, has stood by you in your present difficulties.  That is to your credit.  Apart from its deterrent effect, on you and others, a lengthy custodial sentence is unlikely to be of benefit either to you or to society in this case. 

You have already expressed what I think is genuine remorse, and shame at your actions, and have apparently expressed a determination to give up alcohol.  You will live forever under the stigma of having a High Court conviction for attempted rape, and, for some years at least, being subject to the notification requirements of the Sex Offenders Register.  And your prospects of continuing your education have been blighted.

Rather than imposing a lengthy custodial sentence, it is better, in my view, that I should impose what is called an “extended sentence”, where your time in custody is followed by a period of licence.  I am satisfied that this is necessary for the protection of the public.  It will give you the opportunity after your release of engaging with professionals in exploring your offending behaviour, as it is clear from the Social Enquiry Report that you are willing to do, and thereby reduce the risk of you re-offending.

Accordingly I shall impose an extended sentence, consisting of a custodial term and a further period (called “the extension period”) for which you will be subject to licence. 

Had it not been for your early plea of guilty, I would in all the circumstances, including your youth and previous good character, have fixed the custodial part of that sentence at 3 years.  Because of your guilty plea, which has not only saved court time but has also saved the complainer the ordeal of re-living her experience in court before a jury, I am required to discount that period by one-third, and I accordingly reduce the custodial part of the sentence to 2 years. 

Accordingly the sentence of the court is an extended sentence of 4 years

  • The custodial part will be a period of 2 years detention
  • The extension part will be for a further period of 2 years

I should make it clear that if you re-offend when on licence you will be brought back before the court and dealt with accordingly.

Finally, I should say that I shall place you on the sex offenders’ register for a period of 10 years.  Your solicitor or counsel will explain to you the implications of that”

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