APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Menzies Sheriff Principal Lockhart	[2012]HCJAC 75 XJ207/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by JAMES DUNN Appellant; against PROCURATOR FISCAL, AIRDRIE Respondent: _____________

Appellant: D Taylor, Solicitor Advocate; Gilfedder & McInnes (for Trainor Alston, Coatbridge)

Respondent: Young, QC, AD; Crown Agent

11 May 2012

[1] On the 17 November 2011, at Airdrie Sheriff Court, the appellant was found guilty by the sheriff of a charge libelling that, on 6 February 2010, at an address in Airdrie he assaulted the complainer by seizing her head and forcing it against his clothed private member, pursuing her into a bathroom, forcing her to bend over a bath and pressing his erect private member against her hinder parts, pursuing her into a cupboard, detaining her there and handling her clothed breasts and private parts.

[2] On 4 January 2012 the appellant was sentenced to 1 year's imprisonment backdated to that of conviction, when the appellant had been remanded in custody. Interim liberation was refused by the sheriff on 12 January 2012. Thereafter the case proceeded by way of stated case; the appellant having appealed against the conviction as well as the sentence.

[3] The appeal against conviction has been abandoned. The offence itself is self explanatory. The whole episode lasted some 15 minutes and was clearly a distressing one to the complainer.

[4] The complainer and her partner had been staying in the same house as the appellant and his partner. Both partners had left on errands, with that of the complainer going for a brief visit to local shops. The appellant is aged 33, he has no previous convictions. He had a supportive family network. He himself, like the complainer, has some learning difficulties and appears to have struggled educationally. At the time of the offence he was in part-time employment as a glass collector, earning about £60 per week.

[5] The court observes that this indecent assault was one which did not involve any removal of clothing, handling under clothing or any form of penetration. Albeit that the episode lasted some minutes, the court does not consider that this was such an offence as would justify imposition of the statutory maximum under summary procedure. Indeed, the court takes the view that a community payback order, or, because of the date of the offence, community service might well have been considered by the sheriff as being an appropriate disposal. Unfortunately the appellant has spent some 41/2 months in custody, the equivalent of a sentence of 9 months. In these circumstances, what the court proposes to do is to substitute a sentence of 6 months probation which takes into account the fact that he has spent that prolonged period in custody. In selecting this alternative, the court has taken note of the effect that this new sentence will have on the notification requirements under the Sexual Offences Act 2003.

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