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Read more about victims of crime and sentencing.
HMA v Gordon Jordan McKay
Jun 23, 2023
On sentencing, Judge Watson told McKay:
“Gordon Jordan McKay, you have been found guilty by the jury in respect of charge 3 on the indictment, a charge of rape committed in December 2020 at an address in Lochgelly, Fife when you were 19 years of age. You are also to be sentenced in respect of charges 2 and 4 on the indictment, matters to which you pled guilty, related to your theft of items from the same victim and your failure to attend a diet at the High Court of Justiciary in relation to this matter.
In relation to the crime of rape the evidence disclosed that you and your victim met each other in the days preceding this event and appear to have struck up a relationship of sorts. From the evidence it is clear that you elected to take advantage of the vulnerability of your victim as she slept in your home and when she was entitled to feel safe. You engaged in an act of rape when she had been asleep and it was therefore readily obvious to you that she was in no position to consent or otherwise, and you continued undeterred when she awoke and tried to get you to stop.
Your denial of guilt was rejected by the jury. You have shown no remorse or contrition for this crime. You admitted however that you stole the property of the victim before leaving the house following the rape. You have also admitted that you failed to attend court and avoided facing trial for this matter on a previous occasion, as a result of which you have been remanded in custody since 3 February 2023.
I am bound to have regard in sentencing to the gravity of the crime of rape, to your lack of remorse, and to your conduct in the course of proceedings. You are assessed by the writer of the report as posing a significant sexual risk to adult females. Standing this rape conviction and your record, while this assessment is concerning, it is not surprising. You appear to me to meet the test for an extended sentence in terms of section 210A of the Criminal Procedure (Scotland) Act 1995. I am satisfied that the imposition of an extended sentence is necessary in this case to protect the public, adult females in particular, from serious harm.
I must also have regard to the fact that you were only 19 years of age at the time you committed this crime. The report discloses that you are someone who has not benefitted in younger years from stable parental guidance, having experienced an unsettled childhood and drifted into matters of petty crime. Your involvement in criminal conduct has escalated over a period, again it seems in the absence of any obvious protective factors. It appeared to me in the course of trial, and is borne out in the terms of the report, that you are an immature young man who will inevitably continue to offend unless you are given at some stage, and accept, appropriate support and intervention in relation to the conduct of your life.
I am assisted in the sentencing process by the Scottish Sentencing Council’s guideline in the sentencing of young persons, which requires the court to have regard to your youth, to your immaturity and to the prospect of your future rehabilitation, as well as taking due account of the gravity of the crime of which were found guilty and the effect that it must have had upon your victim.
Weighing all these factors I am drawn to the conclusion that in relation to charge 3, the rape conviction, it is appropriate to impose an extended sentence of 6 years duration in total, of which the custodial term will be 3 years followed by a 3 year period of supervision in the community. You should understand that during the 3 year community-based period you will be subject to close supervision and required to comply with the expectations of your supervising officers. If you fail to comply during the supervision period you may be returned to prison to serve any remaining portion of your sentence in custody. Had you been a more mature individual I would have imposed a significantly longer custodial term. I impose this sentence in the hope that not only will your conduct post-release be appropriately monitored, but that you will also be provided with the support required to assist the process of rehabilitation.
In relation to the other matters, charge 2 is of a less serious nature and effectively formed part of the same episode as that in which the rape occurred. In respect of this matter I would have imposed a sentence of 6 months imprisonment, but will modify that to 5 months to reflect the plea of guilty. That sentence will run concurrently with the sentence on charge 3.
In relation to charge 4, this is a matter which has caused delay in the resolution of this matter and no doubt has unnecessarily continued the period of stress or distress suffered by the victim. You have, in practical terms, already suffered the consequence of your failure to attend by being remanded into custody since 3 February 2023. I might easily have considered that a consecutive sentence in the region of 9 months, with a modification to 8 to reflect your guilty plea, would have properly reflected your failure to attend at a trial diet. In the circumstances however I am prepared to treat the time that you have spent in custody since 3 February 2023 as you having, in effect, served your sentence for the failure to attend court. I therefore admonish you on that charge. However your period of remand having been accounted for in this way, the 6 year extended sentence will run from today.
Finally, as a consequence of conviction and sentence on Charge 3, the rape conviction, you will be subject to registration in terms of the Sexual Offences Act 2003 indefinitely.”23 June 2023