HMA v DEREK MITCHELL

At Paisley Sheriff Court on 13 January 2015, Sheriff Susan Sinclair sentenced Derek Mitchell to a community payback order and imposed a non-harassment order after the accused was convicted of assault and breach of the peace.

On sentencing, Sheriff Sinclair made the following statement in court: 

“Derek Mitchell, I have listened very carefully with everything said in mitigation. No matter has been missed. I have had regard to the terms of the Criminal Justice Social Work Report and the Psychiatric Reports provided to me. You now accept that you have a serious issue with the abuse of alcohol and have started to take steps to deal with it. Nevertheless your conduct during 2011 and in particular on 20th May 2011 was reprehensible. Your actions were those of a spoiled, jealous, possessive man with a serious alcohol problem and a predilection for violence. 

You are assessed as suitable for a community based disposal with conditions. The question for me in the public interest is whether or not that is an appropriate disposal in light of the jury’s decision. 

The whole matter proceeded to trial and you maintained in relation to the most serious charge that you were acting in self defence. The jury rejected that contention. You have been convicted of an assault involving the fracture of the complainer’s finger, resulting in the necessity for surgery and leaving surgical scars and the restricted use of the finger. You have demonstrated remorse. 

As you appear before me as a first offender, before imposing a sentence of imprisonment, statute requires that I be satisfied that no other method of dealing with you is appropriate. 

You have been convicted of one serious assault in the presence of two small children, and two further minor assaults on the complainer during 2011. You have two small children with whom you enjoy contact currently on an intermittent basis. You are gainfully employed. You have expressed remorse in relation to these matters. The relationship was volatile. You have recently recognised the effects of your alcohol addiction and are taking steps to deal with it. 

Against that background I cannot be satisfied as the law requires that there is no alterative open to me other than a custodial disposal. The disposal I have in mind will be more onerous. I intend to impose a community payback order with conditions as follows:

  1. You will be subject to supervision by a criminal justice social worker for a period of two years from today.
  2. You will require to carry out 300 hours of unpaid work in the community within a period of six months from today’s date. You will be allocated a social worker with whom you must keep in contact. You must do the work you are allocated to do and you must do it to a satisfactory standard.
  3. You will require to attend at, participate in, and successfully complete the Change Domestic Violence Programme.
  4. You will require to attend for assessment for alcohol counselling, and if your supervising officer deems it appropriate to attend for alcohol counselling.
  5. You will require to attend court for regular reviews of this order before me throughout the period of supervision. If the order is breached it will be revoked and the direct alternative of a sentence of imprisonment is likely to be the only appropriate sentence available to me. The first review will be two months from today. The Clerk of Court will provide the date in a moment.  

Do you understand?

Do you consent to such an order on these terms and conditions? 

This sentence is imposed as a cumulo sentence in respect of all matters of which you were convicted. 

As far as the application for a non-harassment order is concerned, I am satisfied on a balance of probabilities that it is appropriate to protect the complainer from harassment to make a non-harassment order for a period of six months ordering that you do not approach or contact or attempt to approach or contact in any way whatsoever whether directly, by telephone, text, email or social media, or indirectly by any means whatsoever, Susan McGuire or Mitchell. 

I have elected to impose this order for a period of six months only as you have two small children together and eventually you will both require to co-operate in their upbringing. This is also a sentence. Breach of this non-harassment order is a crime and could result in a period of imprisonment being imposed upon you. Do you understand?”