Scottish High Court of Justiciary Decisons

HER MAJESTY'S ADVOCATE v. JOHN FRIEL DRAIN and ALASTAIR THOM [2000] ScotHC 15 (7th February, 2000)

In this Crown appeal against sentence the respondents are John Friel Drain and Alastair Scott Thom who appeared on indictment in the Sheriff Court at Glasgow on various charges of assault. Drain was sentenced to 300 hours and Thom to 240 hours of Community Service. The question for this court is whether those sentences were unduly lenient and in particular whether only custodial sentences would have been appropriate.

Drain pled guilty to four charges. Charge 2 related to an incident at the premises of the Kirkintilloch Miners Welfare Club. The other charges to which the respondents pled guilty all occurred in a public street in Kirkintilloch to which they had made their way after the incident in Charge 2.

Charge 2 was an assault to injury on Mr. Dick, aged 63 years of age, the Convenor of the Miners Welfare Club. Drain seized hold of the complainer by the arm, pulled him forcibly from the premises, knocked him to the ground and repeatedly punched and kicked him on the head. The complainer suffered two black eyes, with cuts and bruising to his mouth and nose. Both his dentures were cracked.

Charge 4 was an assault to severe injury on a Mr. Murray, a bank manager aged 43. Drain punched him twice in the face and then punched him again, as a result of which the complainer fell to the ground. Drain then punched him a further four times, as a result of which the complainer lost consciousness. When he was in that state, Drain kicked him on the face. At a later stage in the incident Drain again punched and kicked him on the face while he was lying on the ground. As a result of the assault the complainer had to have eleven stitches to a wound on the back of his head. His face was swollen and bruised on the right side. He suffered dizzy spells over a period of four to five weeks, but happily that condition resolved itself thereafter.

Charge 6 was an assault to injury, involving both Drain and Thom. The complainer was a Mr. Brannan, aged 43. He was pulled to the ground and then, using a wall and railing to gain purchase, Thom kicked the complainer on the head and body. Drain joined in and kicked him on the head. When the complainer fought back, Thom pulled Drain out of the way and attempted to kick the complainer on the head but, losing his balance, kicked him on the body.

Charge 7 was an assault to injury which concerned Drain alone. The complainer was a Mr. Beattie aged 29, who was a barman in a nearby public house. When the assaults on the other complainers had taken place, Mr. Beattie heard about what had happened when someone went into the public house to call for an ambulance. Mr. Beattie went to help two of the victims whereupon Drain slapped him, pushed him to the ground and kicked him on the face, with the result that he lost consciousness.

Thom pleaded guilty to two charges, one being Charge 6 to which we have already referred. The other was Charge 5, a charge of assault to severe injury, in which the complainer was Mr. Barr, a retired plasterer aged 64. Thom pulled him to the ground and kicked him twice on the body and three times on his head. He was rendered unconscious. As a result of the assault the complainer had a black eye, bruising to his body and some loss of hearing for about a month. The hearing problem resolved spontaneously. He was detained overnight in hospital and released the following day, but he had to return for further treatment when it was discovered that he had a cracked rib.

We have adopted the narrative of the assaults given to us by the Advocate Depute. It was not challenged in any way by counsel for the respondents. In addition we had the advantage of seeing a clear video recording of the incident which was captured by two CCTV cameras covering the area.

The assaults in the street occurred shortly after 1 a.m. As is clear from the video recording - and as was indeed accepted by counsel for the respondents - the assaults were entirely unprovoked. The respondents assaulted respectable men with whom they had no connexion other than that the complainers happened to be in the street at the same time as the respondents. At the time Drain was aged 28 and Thom was 25, both fully grown men beyond their youth but still at the height of their physical powers. By contrast, with the exception of Mr. Beattie, the complainers were all older men, two of them in their sixties.

In her report to this court the Sheriff, who also saw the recording of the incident, made no assessment of the assaults beyond saying that the charges were serious and that they were without reason or provocation. In our view, however, we have to approach the matter on the basis that there is a sequence of events, starting with Drain's assault on the Convenor of the Welfare Club and then involving what is a series of senseless and unprovoked assaults on various complainers. Those assaults were not only deliberate but continued over an appreciable period and involved in particular kicking to the heads of three of the complainers while they were lying on the ground. The result was that no less than three complainers were rendered unconscious. In themselves these were outrageous attacks. In addition, however, we note that in the case of Charge 4, Drain not only kicked Mr. Murray on the head in an initial assault but at a later stage quite deliberately punched and kicked him again, while he was still unconscious on the ground. In the case of Thom, we noted how he deliberately held on to railings and a wall in order to gain the necessary purchase to inflict the blows which resulted in severe injury to Mr. Barr.

It was suggested in mitigation by Mr. Brown on behalf of Drain that we should approach the matter on the basis that Drain had consumed a large quantity of an alcoholic drink with which he had been unfamiliar and that this drunkenness had been the cause of his acting in this way. He had been unable to recall the incident afterwards. Mr. Brown's submissions were adopted by Mr. Shead on behalf of Thom. Having seen the video recording and having noted how the respondents were both perfectly capable of walking along the street and, more particularly, of aiming punches and kicks with a considerable degree of precision, we are quite unable to accept that the assaults were carried out at a time when drunkenness had made the respondents unable to control their actions. In any event, it is trite that self-induced intoxication cannot be regarded as a mitigating factor in a case like this.

In her report to this court the Sheriff records that it seemed to her that "imprisonment was a possibility for both respondents and thus [she] required to consider the alternative of community service." She then goes on to mention the mitigating factors put forward on behalf of the respondents. What we do not find in the Sheriff's report is any proper attempt to weigh the gravity of these outrageous and unprovoked assaults against the elements of mitigation and so to determine whether the offences themselves were such that, in all the circumstances, they required the imposition of a custodial sentence to mark the court's strong condemnation of such behaviour in our streets.

So far as the mitigation is concerned, counsel for both appellants acknowledged that there was nothing in the circumstances of the offences themselves which could be prayed in mitigation. They therefore concentrated on the personal circumstances of the respondents.

On behalf of Drain Mr. Brown pointed out that, following the first diet on 6 September 1999, there had been a meeting with the procurator fiscal which had resulted in pleas being tendered on 13 September and the respondents being sentenced on 29 September. The respondents had thus pled guilty at a relatively early stage and had avoided the need for a trial. In that connexion we note that the assaults were committed in October 1998, and the respondents apprehended shortly thereafter, and so this is not a case where the respondents took immediate steps to admit their guilt and have the matter disposed of.

Mr. Brown also submitted that, although Drain had a record of previous convictions between 1989 and 1992, he had been out of trouble since. His record included a conviction for assault in March 1989, a conviction for police assault in February 1990 and a conviction for assault in December 1991 but all of these had been dealt with under summary procedure and all had resulted in fines. Indeed Drain had never served a custodial sentence or been ordered to perform community service. He had been in full-time employment for six years and was regarded as a valued employee. What he had done on this particular occasion had been outside his normal range of behaviour and had been caused by the drink which he had taken. He had now stopped drinking. The Sheriff had taken into account all the relevant factors and had not underestimated the seriousness of the offence, as could be seen by the fact that she had imposed the maximum number of hours of community service. He had performed 44 hours. While the sentence might be lenient, it could not properly be characterised as unduly so.

On behalf of Thom, in addition to adopting Mr. Brown's submissions and referring us to H. M. Advocate v. Bell 1995 S.C.C.R. 244, Mr. Shead simply said that, having regard to Thom's background, the sentence could not be regarded as unduly lenient. Thom had only two previous convictions for breach of the peace, one in 1990 and the other in 1992, both of which had resulted in small fines. He too had been in employment and had been appalled when he saw his actings on the video recording.

Despite the submissions on behalf of the respondents, we are satisfied that, having regard to the persistent and vicious nature of the assaults which we have described, this was a case where the only appropriate disposal was a substantial custodial sentence. We have in mind in particular the unprovoked nature of the assaults and the fact that two of the victims were men in their sixties, whereas the respondents were younger men who, none the less, were of an age when youth could not constitute any kind of excuse. Drain's involvement was the more extensive, beginning with the assault in the Club and then continuing with the assaults covered by the other three charges to which he pled guilty. His record of previous convictions is also worse and involves convictions of assault. In the circumstances, taking account of the fact that he has already performed 44 hours of community service, we have felt able to restrict the sentence to three years imprisonment. In the case of Thom, he was involved in fewer charges and his previous convictions are of no significance. In the circumstances, despite the fact that he was the protagonist in the assault on Mr. Barr which resulted in severe injury to him, we have decided that in his case the appropriate sentence is one of two years imprisonment.

We shall accordingly allow the appeal by the Lord Advocate and quash the sentences of community service on Drain and Thom. In the case of Drain we substitute a sentence of three years imprisonment and in the case of Thom we substitute a sentence of two years imprisonment.