APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lady Cosgrove	[2010] HCJAC 133 XJ1077/10 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by KEVIN BRYANT Appellant; against PROCURATOR FISCAL, PERTH Respondent: _____________

Appellant: McDonald; A C Miller & Mackay, Perth

Respondent: Henderson A.D.; Crown Agent

23 November 2010

[1] On 22 September 2010, at Perth Sheriff Court, the appellant was sentenced to 6 months detention for an indecent assault upon a 20 year old female on 1 March 2009 in Hospital Street, Perth. The charge libelled grabbing hold of the complainer, pushing her against a wall, restraining her by using bodily pressure, touching her on the bottom and uttering threats relating to vaginal and oral intercourse.

[2] The complainer had met the appellant's co-accused in a public house earlier in the evening. She was later in the city centre trying to get a taxi home. The co-accused approached the complainer in a forceful manner, pushing her over a car and causing her to injure her wrist. The co-accused ultimately pled guilty to an assault to severe injury in that regard. He was sentenced to a period of community service. The complainer continued to walk towards the taxi rank, but was accosted by the appellant in terms of the libel. Ultimately the complainer was in tears. The appellant desisted his conduct either because of the appearance of a passer-by or as a result of being pushed away.

[3] The appellant was a first offender aged 17 at the time of the offence. He had been drinking, although he maintained that he had not been drunk. The Social Enquiry Report revealed that he did not have a particularly troubled background, although he had been diagnosed as having ADHD when he was young. The report describes him as immature and naïve. The report recommended a period of probation, with a programme lasting 9 months on how to deal with his sexual behaviour. The sheriff rejected that suggestion and also the direct alternative to custody of community service.

[4] There were three submissions. The first concerned the sheriff's declining to afford the appellant any discount, because he had pled shortly before a trial diet. It was argued that there had been some utility in the plea. The trial had not taken place and it could not be said that a plea of guilty was inevitable. However, when regard is had to the procedural background and particularly to the fact that there were some four trial diets allocated, three of which were postponed on the applications of one or other of the accused, it cannot be said that the sheriff erred in concluding that the utilitarian value of the plea was so small as not to merit a discount.

[5] The second submission complained of the length of the custodial sentence. However, if a custodial sentence were to be regarded as the only appropriate one, it cannot be said that the period selected was excessive.

[6] The third submission, and the one which the Court considers to have merit, is that founding upon section 207(3) of the Criminal Procedure (Scotland) Act 1995. Because of the appellant's age, the sheriff had to be satisfied, as he said he was, that detention was the only appropriate sentence. Having regard to the limited nature of the libel and to the lack of previous offending, the Court is unable to agree with the Sheriff's conclusion. The Court does consider that, for the reasons given in the Social Enquiry Report, a period of probation ought to provide the public with a degree of protection, if it is accompanied by a special condition that the appellant attend the appropriate Sex Offenders programme. The Court also considers that, as an additional penalty, a period of unpaid work in the community of 240 hours ought to be made a condition of the probation.

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