US citizen jailed for assault wins appeal against custodial sentence

The Criminal Appeal Court ruled that the offence was not one which ought to have attracted a custodial sentence and substituted the prison term for a fine of £2,500.

The Lord Justice Clerk, Lord Carloway – sitting with Lord Malcolm – heard that on 6 November 2014 at Dundee Sheriff Court, the appellant Kevin Rundstrom was convicted after trial of assaulting the complainer Guy Whitworth in the Vic Public House, St Andrews, by “lunging at him, repeatedly punching him on the head and struggling with him to his injury”.

The circumstances of the offence were that on 13 June 2014, the complainer and two female friends, all PhD students at St Andrews University, had gone to the pub, having been drinking elsewhere, as part of the celebrations for his 24th birthday.

The appellant, a United States citizen, was working at the Old Course in St Andrews as a greenkeeper on an internship, for which he had a six month work visa.

He had fallen into company with the complainer’s group, but they developed a “mutual animosity” which culminated in some form of remark and resulted in the appellant attacking the complainer.

The appellant 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.

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.

The sheriff had viewed the CCTV footage along with the jury and described the appellant’s conduct as involving a “high degree of aggression”.

Although the sheriff reported that she recognised the effect of the jury’s deletion of the severe nature of the injury and the permanent disfigurement, it was apparent from her description of the incident that she took into account, in the sentencing process, the fact that the complainer had “significant injuries”.

She added 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.

Nevertheless, the appeal judges held that the sentence imposed was excessive.

Delivering the opinion of the court, the Lord Justice Clerk said: “Standing the terms of the conviction, the offence here was an assault to injury only by a first offender.

“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 was continued to enable practical arrangements to be made.

“If the court is satisfied that the fine will be paid, the result will follow,” Lord Carloway added.