Appellant: Mackenzie; Drummond Miller

Respondent: Rodger; Crown Agent

15 January 2014

[1] The appellant was convicted after trial of three charges. All of these occurred at or outside the house in Livingston where the appellant lived with his wife and eight-month-old son. The first charge was of a statutory breach of the peace under section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, to the effect that on 20 May 2013, in the house in question, the appellant had shouted and sworn, forced open and damaged a locked door, and he placed his wife in a state of fear and alarm. The second and third charges were both of assault on the appellant's wife: first, that inside the house he punched her on the head causing her to fall on to a bed while she was holding her eight-month-old son, to her injury; and secondly that outside the house he drove a motor vehicle at her. The sheriff imposed a sentence of six months' imprisonment.

[2] In her report the sheriff narrates that by the day of the incidents the appellant's marriage was in difficulties, and the appellant's wife had decided that she was going to leave the appellant, taking their eight-month-old son with her. The child had fallen from a chair, for which the appellant blamed his wife, and in the ensuring argument Mrs McCormack stated that she and their son were going to go and live with her mother. The appellant became enraged and started shouting and swearing at his wife, saying that he would not allow her to take her son. Mrs McCormack telephoned her mother, and went upstairs with the child to her bedroom to wait for her mother to arrive. She locked the door. The appellant abused her, and using the weight of his body he forced open the locked door, damaging it. The appellant ran across the room towards his wife, saying that he was going to take the child. Mrs McCormack reached behind her and picked up a bedside lamp, which she used to try to fend off the appellant, but he pushed it away and then punched Mrs McCormack on the side of the face, under the eye. This caused her to fall on to the bed. He then took the child from her arms and went towards his car. Mrs McCormack ran after him, shouting to him to return the child to her. The appellant entered the car, put the child on the front passenger seat, without restraint, and performed a three-point turn, which was necessary to leave the road where the parties lived. Mrs McCormack tried but failed to open the driver's door and then grabbed the rear windscreen wiper. Once the three-point turn had been completed Mrs McCormack stood in front of the car, trying to block its exit. The appellant drove straight at her, without swerving. She jumped out of the way; had she not done so the car would have hit her. The appellant was found by the police a short time afterwards, in the car, with the child still on the front seat.

[3] The sheriff indicated that a community disposal would not adequately reflect the seriousness of the incident. She indicated that the appellant clearly considered himself to have been wronged by his wife's stated intention to leave and take their son with her. He had shown no recognition of the danger of putting his son on the front seat of the car, unrestrained, especially in light of the fact that the original trigger for the incident was his wife's having let the child slip off a chair. He had also displayed a tendency to minimize the significance of breaking down the bedroom door and the punch, and had shown no insight into or remorse for the distress caused to his wife.

[3] In presenting the appeal, counsel for the appellant submitted that the incidents had resulted from a loss of temper, which was out of character and had escalated. The appellant had no previous convictions, and there had been no social work involvement with the family. Because of the appellant's lack of previous convictions, section 204(2) of the Criminal Justice (Scotland) Act 1995 was relevant. She submitted that in the present case there was a viable alternative to custody, in the form of a community payback order with a supervision requirement and a requirement of work aimed specifically at offending in a domestic context. Unpaid work could also be imposed. Furthermore, the appellant had entered into a new relationship with a woman who already had children. His family circumstances were accordingly stable, and he had unsupervised access to his partner's children. Members of the family were present in court to support him. The appellant also frequently saw his children by a previous relationship. Reference was made to the case of KB v HM Advocate, [2010] HCJAC 134, where the appellant had pushed his partner and a sentence of community service was substituted for custody.

[4] Notwithstanding the submissions that have been made, we are of opinion that the sheriff was fully entitled to impose a sentence of six months' imprisonment in the present case. Section 204(2) of the 1995 Act is applicable, but we do not consider that any suitable alternative to custody exists. This was a serious case of domestic assault. Inside the house, the appellant broke down the door to the room where his wife had taken refuge and then hit her. He took their eight-month-old child outside and placed him, unrestrained, on the front seat of the car. That conduct was plainly extremely dangerous. The appellant then drove away in the car. When his wife tried to stop him, he drove straight at her, and the sheriff notes that if she had not jumped out of the way the car would have hit her. That in itself is clearly a serious assault. We accept that the events occurred because the appellant lost his temper, but that cannot justify them. We further accept that the appellant is now in a stable relationship, but the seriousness of what he did in our opinion justifies the sentence imposed by the sheriff. As to the decision in KB v HM Advocate, we note that the assault charge in that case involved a single push on the body. This was followed by breach of bail conditions and a breach of the peace. The present case, by contrast, involves the breaking down of a door, the punching of the appellant's wife, and the further incident in the road. These were clearly much more serious, and we do not think that the decision in KB is of assistance.

[5] The appeal will accordingly be refused.