APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Menzies	[2012] HCJAC 80 XC94/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by CRAIG HARVEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: I M Paterson, solicitor advocate; Patterson Bell (for McLennan Adam Davis; Ayr)

Respondent: Hughes, AD; Crown Agent

9 May 2012

[1] On the 13 January 2012, after a trial at Ayr Sheriff Court, the appellant, who is aged 19, was found guilty of charges which libelled that on the 24 April 2011 at Dalrymple Street, Girvan, he: (1) assaulted DS by repeatedly striking him on the head with a rock to his injury; and (2) behaved in a threatening and abusive manner, which was likely to cause a reasonable person to suffer fear or alarm by following the complainer and shouting abusive remarks at him; contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010. On the 7 February 2012, the sheriff sentenced the appellant to 12 months detention (reduced from 18 months, as the conviction reflected pleas tendered previously by the appellant at a first diet).

[2] The circumstances, as reported by the sheriff, were that the complainer and his friends had been in a pub in Girvan singing karaoke songs including "Delilah". On emerging from the pub, the complainer noticed the appellant, whom he knew from school, along with other young persons. He decided to start singing the refrain again, with the appellant's full name substituted for Delilah's. The appellant took offence at this and began shouting at the complainer. He followed him and continued to shout abuse. On catching up with the complainer, the appellant struck him on the back of the head with a rock, which he had earlier picked up. He then struck him on the face with the rock. The complainer fell to the ground and the appellant again shouted abuse before leaving. The wound to the back of the complainer's head required 5 stitches.

[3] The appellant has one previous conviction for an assault of a relatively minor nature, for which he was fined. The appellant was employed at a local golf course as an assistant greenkeeper.

[4] In selecting a custodial sentence of the length which he did, the sheriff comments that assault and public disorder are common in Girvan. Hence, he concluded that only a custodial sentence was appropriate. In that regard it is important to note that leave to appeal has only been granted on the length of the custodial sentence and the court proceeds on that basis.

[5] The court accepts that the sheriff was entitled to have regard to the prevalence of violence and public disorder in Girvan before selecting a custodial sentence. Some care, however, is required in this area in the absence of any indication that the appellant has been involved in such disorder. The offence involved the repeated use of a rock to cause injury and a custodial sentence was perhaps almost inevitable given also the previous conviction for assault. Nevertheless, having regard to the fact that this was a conviction of assault to injury only, along with the statutory breach of the peace, the court accepts the submission that the period selected was excessive. In its place the court will substitute a sentence of 6 months imprisonment, which is reduced from 9 months for the early plea.

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