Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 48

HCA/2014/473/XC

Lord Justice Clerk

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

KEVIN RUNDSTROM

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: G Tait, Solicitor Advocate; Capital Defence Lawyers (for Norrie & Gilmartin, Dundee)

Respondent: Carmichael AD; the Crown Agent

29 April 2015

[1]        On 6 November 2014, at the sheriff court in Dundee, the appellant was convicted after trial of assaulting the complainer in the Vic Public House, St Andrews on 14 June 2014, by lunging at him, repeatedly punching him on the head and struggling with him to his injury.  He had been charged with an assault to severe injury and permanent disfigurement by the use of a glass, but reference to these matters were deleted by the jury.  The sheriff explains that there was no doubt that the complainer had sustained a severe injury, but she had directed the jury that they required to delete these matters should they consider (as they ultimately did) that it was not proved that a glass had been used.  She states that she considers that to have been an error, as the jury may have considered that the severity of the injury had been caused as a consequence of the complainer falling onto glass, as a result nevertheless of the assault.

[2]        On 5 February 2015, the sheriff sentenced the appellant to 21 months imprisonment, which had been discounted from a headline sentence of 24 months, given that the appellant had, at an early stage, offered to plead in the terms of which he was eventually convicted.

[3]        The circumstances of the offence are relatively straightforward.  On 13 June 2014, the complainer and two female friends had gone to the pub, having been drinking elsewhere, as part of the celebrations for the complainer’s 24^th birthday.  His company were all PhD students at the University.  The appellant is a United States citizen.  He was working at St Andrews as a green keeper on an internship, for which he had a 6 month work visa.  He had fallen into company with the complainer’s group, but they appeared to have developed a mutual animosity.  This culminated in some form of remark, which had resulted in the appellant attacking the complainer in terms of the conviction. 

[4]        The sheriff had viewed the CCTV footage along with the jury.  She described the appellant’s conduct as involving a “high degree of aggression”.  Although the sheriff reports that she recognised the effect of the jury’s deletion of the severe nature of the injury and the permanent disfigurement, it is apparent from her description of the incident that she took into account, in the sentencing process, the fact that the complainer had “significant injuries”. 

[5]        Standing the terms of the conviction, the offence here was an assault to injury only by a first offender.  The sheriff states that, had the appellant been a United Kingdom citizen, she would have imposed a Community Payback Order, with a significant number of unpaid hours in the community, as an alternative to custody.  However, standing the terms of the jury’s verdict, the appellant’s lack of record and his otherwise constructive life, the court is satisfied that this is not an offence which ought to have attracted a custodial sentence.  The appellant had £1,700 in savings in Scotland and has other sources of income.  In these circumstances, the court proposes to substitute, for the sheriff’s custodial disposal, a fine of £2,500.  The case will be continued to enable practical arrangements to be made in that regard.  If the court is satisfied that the fine will be paid, the result will follow.