SENTENCING STATEMENTS

On sentencing, Lady Poole said:

“Tendayi Darlington Magadu, you were convicted by the jury at the High Court in Edinburgh of two charges of rape and two charges of voyeurism. 

The jury found you had sex with your first rape victim on a date night when she was so intoxicated that she was incapable of giving or withholding her consent.  It is an aggravating factor that you filmed this encounter.  In the second rape offence against another woman, you had sex with your victim when she was asleep, and continued penetrating her when she woke up and told you to stop.  Your two offences of voyeurism relate to a video recording and other images you made on the occasion you raped your second victim, which the jury found were made without her consent.  You had been drinking at the time of all of these offences, but that is another aggravating factor. 

Both women deserved to be treated by you with respect. Instead, both were deeply upset by what you did when they were vulnerable due to intoxication or being asleep.  They had a right to choose what happened to their body, and be in a position to make that choice.  You took that away from them.  Both were embarrassed that you filmed them when raping them, and that images had to be viewed by those in court.  It is also of concern that the images and film you made of your second victim were on a device where they were seen by a 12-year-old boy, to his evident upset.  

I have read a victim impact statement from one of your victims, in which she describes how difficult she has found going through the experience of this court case.  She wonders daily about the images you took and who might have seen them.  The whole situation has caused stress which has made her unwell, and caused problems in her home.  

You come before the court as a 51 year old man with a limited record of non-analogous previous convictions, but I note that you have spent time in prison before, including in connection with an attempt to pervert the course of justice.  You now accept that your own use of alcohol may have clouded your judgement at the time of your offending, and made you unable properly to consider capacity for informed choice.   

I have considered the criminal justice social work report that I ordered.  The writer of that report assessed you as posing a risk of committing similar behaviour, with such behaviour being likely to result in serious and lasting psychological harm.  The level of risk of harm you pose was found to be high, unless you become able to control your alcohol use and address your sense of entitlement about sexual intercourse. 

I have also considered everything said on your behalf in mitigation.  You have been in the UK since 1996 and are a British citizen.  You retain some family support, including from a sister in Africa and your two oldest children who are now adults.  You have a good history of education, at school and university levels.  You also have a history of work for a variety of organisations including government bodies, but have been unable to work since 2018 due to medical issues.  You have a number of health problems.  You have taken some steps to address your alcohol problems by attending an alcohol service and cutting alcohol use significantly.

Nonetheless the offences of which you have been found guilty must attract a significant prison sentence. 

I have decided to impose an extended sentence on you, because normal licence conditions would not be adequate for the purposes of protecting the public, in particular women, from serious harm from you.  The cumulo sentence I impose is for a total of 9 years but served in two parts, a custodial part followed by an extension period.  The custodial part I impose will be for a period of 7 years, 6 months of which should be regarded as attributable to the partner aggravations.  This will be followed by an extension period in the community of 2 years. During the extension period you will be on licence on conditions fixed by the Scottish Ministers. If you fail to comply with the conditions, the licence may be revoked and you may be returned to custody; and you may also be sentenced for an offence committed while on licence. I should say that if I had been sentencing on each charge alone, I would have sentenced you to 5 years in respect of charge 11, a consecutive sentence of 5 years in respect of charge 8, and 18 months cumulo in respect of charges 9 and 10 to be served concurrently with the sentence on charge 8.  However the total sentence from aggregating these separate sentences would be imprisonment for 10 years.  Having regard to the need for sentences to be fair and proportionate, and the punitive effect of an extended sentence, I have instead imposed a cumulo extended sentence of 9 years.  

Your extended sentence will be backdated to 17 October 2024 when you were first remanded in custody. 

As a result of that sentence you now become subject to the notification requirements of the Sexual Offences Act 2003 for an indefinite period, and your name has been added to the lists of persons deemed unsuitable to work with vulnerable groups.

I also make non harassment orders, because I consider the statutory tests for making those orders are met.  Details of the people to whom these orders apply are specified in the court order which will be provided to you.  You must refrain from approaching or contacting or attempting to approach or contact, by any means including electronic, the people specified in the court order, for the periods specified in that order.”