Her Majesty's Advocate V. K.h.
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Justice Clerk,Lord Menzies |
| Judgment Date | 23 April 2014 |
| Neutral Citation | [2014] HCJAC 36 |
| Published date | 07 May 2014 |
| Court | High Court of Justiciary |
| Date | 23 April 2014 |
| Docket Number | XC76/14 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Menzies Lord Bracadale | [2014] HCJAC 36 XC76/14 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in CROWN APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against KH Respondent: _____________ |
Appellant: Edwards AD; the Crown Agent
Respondent: CM Mitchell; Nelsons, Falkirk
23 April 2014
[1] At a first diet at Falkirk Sheriff Court on 4 December 2013, the respondent pled guilty to a charge which libelled that:
"on 14 January 2013 at [a secondary school] you ... did sexually assault SR [aged 15] ... block her exit to prevent her from leaving a cupboard, seize her mobile phone, touch her bottom and breasts over her clothing, attempt to kiss her, kiss her, pull her towards you, expose your naked erect penis to her, masturbate your naked erect penis, make remarks of a sexual nature to her, and rub your naked erect penis against her clothing in the area of her vagina to the emission of semen; CONTRARY to Section 3 of the Sexual Offences (Scotland) Act 2009".
[2] Having adjourned for the purposes of obtaining a Criminal Justice Social Work Report, on 9 January 2014 the sheriff granted the respondent an absolute discharge. The respondent was then aged 16. The incident took place at a secondary school attended by both the respondent and the complainer, who was aged 15. They were classmates and on friendly terms. They were sitting together in an English class, when the complainer asked for permission to go to the music department and the respondent asked for permission to go to the maths department. The complainer walked with the respondent to the stairs. The respondent decided to accompany the complainer to the music department. They both arrived at the recording studio, where they left their bags and blazers. The respondent played his guitar. The complainer then left the recording studio to go to the music room and the respondent followed her.
[3] According to a narrative agreed by the Crown and the respondent, upon arriving at the music room the respondent touched the complainer's bottom on top of her clothing, tried to touch her breasts and said that he wanted to have sexual relations with her. He tried to kiss her on the lips. The complainer told the respondent that she was not interested and pushed him away. She then left the music room and walked along a corridor into the music room store cupboard. The respondent followed her in, closed the door and stood in front of the door preventing her from leaving. He took hold of her mobile phone and placed it on a nearby shelf, saying "no disturbances". He then assaulted her in terms of the remaining parts of the libel.
[4] The complainer made her way back to class, but later that afternoon, when going home on the bus, she told a friend and later her boyfriend about what had happened. The police were in due course involved and the respondent was questioned. He initially gave a no comment interview, but then provided an account similar to that given by the complainer with the exception that he maintained that the sexual activity had been consensual.
[5] In the course of his plea in mitigation, the respondent's agent told the sheriff something of the general nature of what he asserted, albeit upon some investigation, was the complainer's sexual experience. He described the respondent's conduct as "clumsy, immature, fumbling". It had been maintained by the Crown that the complainer had been left anxious about the incident and had had nightmares concerning it. She had, on the other hand, sought out the respondent at a local social club on occasions, although the respondent had avoided her.
[6] The respondent's personal circumstances were that he was regarded as an intelligent pupil,...
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