APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Drummond Young
Appeal No: C34/02
OPINION OF THE COURT
delivered by LORD HAMILTON
APPEAL AGAINST SENTENCE
COLIN DAVID BOYD, Q.C., HER MAJESTY'S ADVOCATE
Appellant: R. McCreadie, A.D.; Crown Agent
Respondent: A. Mackay; Bruce McDonald & Co
10 May 2002
"In considering an appropriate sentence in this case I had as my starting point that the gravity of the offence would normally result in a custodial sentence. However, as the respondent had not previously been sentenced to imprisonment or detention I required to take account of section 204(2) of the Criminal Procedure (Scotland) Act 1995 and consider whether there was any other appropriate method of dealing with the respondent.
In considering alternatives to imprisonment I took into account that the respondent, at 45 years of age, appeared as a first offender, that he had pleaded guilty thereby sparing the complainer the added stress of giving evidence, that he had pleaded to an amended charge, that the assault had resulted in minor physical injury and that the complainer appeared to have made a full recovery from the consequences of the assault. While not ignoring any effect of a custodial sentence on the respondent's employment and his family, I gave little weight to these factors as mitigation. I did give careful consideration to the content and conclusion of the Social Enquiry Report and noted that the author thereof considered that there was a risk, albeit a medium risk, of the respondent re-offending and that that risk could be addressed by him participating in a Sex Offenders Programme.
In my opinion any sentence in this case required to both protect the public while still containing a punitive element to reflect the gravity of the offence.
In my view these two elements could best be achieved by a lengthy probation order requiring the respondent to participate in a Sex Offenders Programme and also, as punishment, requiring him to carry out unpaid work and pay compensation to the complainer."