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HMA v Beni Mubiala


Jul 8, 2024

At the High Court in Glasgow Judge Kevin McCallum KC imposed an extended sentence of 11 years on Beni Mubiala after the offender pled guilty to two charges of rape. The extended sentence comprises of a custodial term of 9 years and an extension period of 2 years.

On sentencing Judge McCallum KC made the following remarks in court:

Please be aware this statement contains graphic details of the offences which people may find distressing.

"Beni Mubiala, on 7 June 2024, at a diet of trial at Glasgow High Court, you pled guilty to a domestically aggravated offence of penile/vaginal rape of one complainer contrary to section 1 of the Sexual Offences (Scotland) Act 2009 ; and a further offence of penile/vaginal rape and assault by sexual penetration by digital/anal penetration contrary to sections 1 and 2 of the Sexual Offences (Scotland) Act 2009 committed against a second complainer. This further offence was committed whilst you were on bail in relation to the first offence.

The offences that you have pleaded guilty to were and are very serious sexual offences.
The complainer in Charge 1 was a young woman who was your friend, and who was in an intimate, sexual relationship with you. In terms of the agreed narrative that was read to the court, the parameters or boundaries of that intimate, sexual relationship had been discussed, and agreed to, between you. They did not include engaging in penile/vaginal sexual intercourse. You knew that. 

Notwithstanding that, on the date in question, after engaging in consensual sexual activity, you proceeded to penetrate the complainer’s vagina with your penis without her consent and in the knowledge that she did not consent. She said ‘no’, asked you to stop. 
You did not stop, and did not do so until she made efforts to push you away. 
In short, you abused your relationship with her and you raped her.

In relation to Charge 2, the complainer was a young woman who was your work colleague. 
In terms of the agreed narrative that was read to the court, having met her by chance on a night out, you and she spent time together and began kissing. You, along with others, were then invited by the complainer back to her student accommodation.

Once there, you and she engaged in consensual sexual intercourse which she eventually asked you to stop.

Having stopped, you then asked her to perform oral sex upon you. After a degree of persuasion, she did so for a period of time before stopping, turning away from you and trying to go to sleep.
At that point, by use of a degree of force, you pulled her onto her back, sat on top of her and penetrated her vagina with your penis. 

You then turned her over onto her knees and penetrated her anus with your finger.
You then turned her back onto her back and again penetrated her vagina with your penis. 
You then put your hand around her throat and choked her, causing her to gasp for air. 
Once you released your grip on her throat, you slapped her in the face.

In doing all this, you vaginally raped her and sexually assaulted her by digitally penetrating her anus.

You did so whilst employing a considerable and worrying degree of violence.
You did so whilst already on bail for the crime of rape in relation to the first complainer.
In terms of the Victim Impact Statements that I have seen, it is clear that your actions have had a significant, adverse effect on both your victims.

I have listened very carefully to all that has been said on your behalf by Senior Counsel today and have had regard to the terms of the Criminal Justice Social Work Assessment and Risk Assessment that are now available. 

I note with concern that the account that you gave to the author of the Criminal Justice Social Work Report in relation to Charge 1 is inconsistent with the agreed narrative of the facts in relation to that charge; and that, in effect you denied the commission of that offence notwithstanding your guilty plea.

You are now aged 27 years of age. You have no previous convictions and a reasonable work record. I accept that your early years were unsettled given your move from the Congo as child.
Senior Counsel on your behalf has very properly recognised that a significant custodial sentence is the only appropriate disposal for these offences.

That is undoubtedly so.

These were both serious, sexual offences. The second offence is aggravated by the degree of violence that you used in its commission and by the fact that you were on bail for a similar offence when you committed it. 

Furthermore, on a more careful analysis of Charge 2, there were in fact two instances of vaginal rape separated by a sexual assault by digital/anal penetration in between.

The level of your culpability, particularly regarding Charge 2, was high in relation to these offences; as was the level of harm that you caused to both your victims.

I am quite satisfied that the requirements for punishment, deterrence and public protection outweigh any other sentencing objectives in this case.

Furthermore, despite what Senior Counsel has submitted on your behalf, and indeed under reference to the Opinion of Lord Brodie at paragraph 21 of the court’s Opinion in DS v HMA 2017 SCCR 129 that he cited to me, having regard to the nature of these offences that involved a worrying escalation to the use of significant violence in the commission of Charge 2; and given the terms of the Risk Assessment available to me, I am satisfied that the normal licence or parole conditions are not sufficient to protect the public, and in particular females that you may from relationships with, from the risk of serious harm, and in particular the risk of serious sexual harm,  that you present; so that I should impose an Extended Sentence in terms of s. 210A of the Criminal Procedure (Scotland) Act 1995.

I have decided to impose a single, cumulo Extended Sentence to reflect the totality of your offending behaviour.

In identifying the appropriate cumulo Extended Sentence to impose, I have to have regard to the principle of totality, so that I do not impose an overall sentence in relation to the offences committed that is excessive.

Accordingly, in respect of Charges 1 and 2, I impose a cumulo Extended Sentence of 11 years’ imprisonment; consisting of a Custodial Part of 9 years’ imprisonment followed by an Extension Period thereafter of 2 years.

The Custodial Element of the sentence has been modified from an original headline cumulo Custodial Element of 10 years’ imprisonment to reflect that you pleaded guilty to these offences at a trial diet. 

6 months of the Custodial Element of the sentence imposed is attributable to the bail aggravation in relation to Charge 2. In all the circumstances, I have not attributed any of the sentence to the domestic aggravation libelled in Charge 1. 

For completeness, I should indicate that had I been dealing with, and imposing, sentences in relation to Charges 1 and 2 individually, in respect of Charge 1, I would have imposed a sentence of 4 years and 6 months’ imprisonment, modified from a headline sentence of 5 years’ imprisonment to reflect the timing of your guilty plea. None of the sentence would have been attributable to the domestic aggravation. In relation to Charge 2, I would have imposed a sentence of 6 years and 8 months’ imprisonment, modified from a headline sentence of 7 years and 6 months’ imprisonment with 6 months of the sentence attributed to the bail aggravation.
The cumulo Extended Sentence of 11 years’ imprisonment will date from 10 June 2024 when I first remanded you into custody.

Returning to Charge 1, although the Crown did not make a motion that the court should impose a Non Harassment Order in relation to the complainer in that charge, in terms of s. 234ZA of the Criminal Procedure (Scotland) Act 195, the court is nevertheless required of its own volition to consider whether a Non Harassment Order should be made; and is required to make such an Order unless it is positively unable to conclude that the victim should be protected by such an Order. That approach is confirmed in the decisions in Finlay v Corrins [2020] SAC (Crim) 1 in the Opinion of Appeal Sheriff Braid at paragraph 11 and in HMA v RM 2024 JC 81 in the Opinion of the Lord Justice Clerk at paragraph 50.

In the present case, I am unable positively to conclude that the complainer in Charge 1 should not be protected by such an Order.

Accordingly, in respect of Charge 1, I shall make a Non Harassment Order in terms of section 234AZA of the Criminal Procedure (Scotland) Act 1995 to the effect that you shall not contact, attempt to contact, approach or attempt to approach the complainer in Charge 1 for an indefinite period.

As a result of your conviction and the sentence imposed, you will be subject to the Notification Requirements of the Sexual Offences Act 2003 for an indefinite period.
That is all.