HMA V JOYNED MIAH

At the High Court in Edinburgh Lord Doherty sentenced Joyned Miah to four years and nine months after he was convicted of rape.

On sentencing Lord Doherty made the following statement in court:

“At the time of the offence of which you have been convicted the complainer was a prostitute. She had attended at your home to provide you with sexual services for payment, as she had done on numerous occasions previously. Like any other woman she had the right to withhold her consent to any sexual activity she did not wish to engage in. On the occasion in respect of which you have been convicted you raped her twice.

In approaching sentence I have had regard to all that has been said on your behalf. You have four previous convictions on indictment, in relation to two of which you served custodial sentences. However, all those convictions were many years ago and they were not for analagous offences. Since they were committed you have avoided further offending. It appears that you have worked hard in the restaurant industry and have  contributed positively in several ways to the lives of others.

I take all of this into account. However, the fact remains that the crime you have been convicted of is a very serious one. The public interest requires that I impose a significant custodial sentence.

Your legal advisers have lodged a devolution issue minute in which it is claimed on your behalf that the charge against you was not determined within a reasonable time. You were charged on 23 October 2009. A petition warrant was issued on 31 December 2010 and you first appeared on petition on 2 January 2011. An indictment was served upon you in October 2011. At a Preliminary Hearing on 2 November 2011 the case was appointed to proceed to trial at the High Court at Dundee. The trial duly commenced on 9 March 2012 and you were convicted on 14 March 2012.

The period between charge and conviction was two years four and a half months. I am satisfied that there was inordinate delay between you being charged with the offence and being placed on petition. In particular, there was an unacceptable period of inaction of just over eight months between 12 February 2010 and 21 October 2010. You were at liberty at that time, but the anxiety and uncertainty which you were subject to during that period was unnecessary and ought to have been avoided. Accordingly, because of that inexcusable delay, I recognise and  acknowledge that there was a breach of your right under Article 6 of ECHR to have the charge against you determined within a reasonable time.

I have considered whether the court’s acknowledgement of that breach, without more,  would be an adequate remedy in your case. With some hesitation I have come to the view that it would not, and that in addition there ought to be a very modest reduction in the sentence which I would otherwise have imposed.

Had it not been for the breach the sentence I would have imposed would have been one of five years imprisonment. In light of the breach the sentence which I impose is imprisonment for four years and nine months. That sentence will be backdated to 14 March 2012. It follows that I uphold the devolution issue minute but only to the extent of acknowledging the breach of  Article 6 and modifying the sentence I would have imposed from one of 5 years imprisonment to one of 4 years 9 months imprisonment”.