PF v Keith McDonald

On 7 April at Selkirk Sheriff Court, Sheriff J Scott sentenced Keith McDonald to 8 months imprisonment after he was found guilty of a number of indecent assaults.

On sentencing Sheriff J M Scott made the following statement in court:

Keith McDonald, you appeared before me for trial on 26 and 27 February 2015 on summary complaint and were convicted of four charges all involving behaviour of an indecent and sexual nature. 

You describe yourself as the sole shareholder and sole director of Bathhurst White Limited, a company that owns and operates The Ship Inn, East Port, Melrose and you design yourself as the “Human Resources Manager” and as such you took responsibility for hiring staff.

Over a period of 12 years, between 27 August 2001 and 18 May 2011 you took advantage of having a young female employee who you repeatedly indecently assaulted.  You touched her buttocks.  You put your finger in the crack at the top of her buttocks and you touched her breasts.  On one occasion when she was trying to change a barrel in the cellar you lifted her skirt and exposed her underwear.  These assaults took place too many times for her to give a detailed account of each assault, save the one which occurred in the cellar.  She did not consent to your actions.  She tried to avoid contact with you.  If contact occurred she would hit out or push you away or tell you in terms to go away. You abused your position as her employer when you assaulted her.   You inured her to a working environment of sexual comment, innuendo and assault, starting when she was quite a young woman.  I reject entirely that this was “frivolous fun” or a “joke”.  It was neither.  This was criminal behaviour.  I accept that this particular employee put up with it and went on working for you and take that as a mitigating factor, but the fact that you were her employer and she depended on you for work is an aggravating consideration. 

I also found you guilty of conducting yourself in a disorderly manner between 27 August 2001 and 18 May 2011 by making repeated sexual remarks towards employees as they worked for you in the bar at the Ship Inn and in other places where there was a public presence.  You made repeated comments about the size of women’s breasts and references to breasts.  These were offensive.  You also made repeated references to sexual intercourse, expressing in public a desire to “shag” certain women, who you named.  You commented on women’s potential sexual performance.  You invited an employee to “straddle” you suggesting sexual contact, when she required to move past you into the bar area.  You also made personal comments about barmaids’ buttocks.  These remarks disturbed your female staff who found them offensive and disturbing.  Any right thinking individual would have found them grossly offensive.  I found that the conduct was sufficiently offensive to threaten serious disturbance to the community.

On one occasion in particular, occurring between the beginning of 2009 and early 2010 you exposed your penis in the bar in the presence of staff and customers.  Another customer pulled down your shorts.  Instead of pulling up your shorts and making yourself decent, I found that you held your genitals outside your boxer pants (which were still in place) and flapped your private parts.   You did this in the presence of members of the public in the bar and were observed by two barmaids, one aged 18 and the other aged about 19.  This was not a joke.  It was offensive, indecent behaviour that threatened the public peace.

In about 2007 you indecently assaulted another employee, then aged about 19.  She was working as a barmaid at The Ship Inn at the time.  You put your hands out and placed them on her hips and buttocks.  Your contact with her was deliberate, unsought and inappropriate.  It was unwelcome touching of a sexual nature.  It caused her distress.  After this assault she telephoned her mother in distress to tell her what had happened and she left her job at The Ship Inn.  This was in immediate response to the assault.  Your behaviour meant she could no longer stay in her employment.  This is an aggravating factor in any sentence.

On 28 July 2013 you sexually assaulted a young woman while she was sitting at the bar at The Ship Inn.  She was then 18 years of age.  She was in the bar as a customer. You came up behind her and stood very close to her, so your body touched hers.  You put your hands on her shoulders and then moved your hands to touch her breasts, over her clothing.  You then put one hand inside her clothing and touched her breast under her clothes, but over her bra.  She repeatedly asked you to get off her but this did not deter you.  You proceeded to touch her buttocks and punched her lower back repeatedly, albeit your punches were not hard.  The incident came to an end when her friend, who was serving behind the bar saw you with your arm round the young woman, heard her telling you repeatedly to get off and saw she was distressed.   The barmaid concerned summoned a customer who brought the incident to an end.  When the young woman got home that night she was very distressed. Her mother called the police.  The assault has had a continuing effect on that young woman’s personality and behaviour.  She has become withdrawn.  She is less sociable and less tactile.  She is apprehensive and has difficulty in coping if she is touched, especially if she is approached from behind.  This incident has had a marked psychological effect on a young woman.  It caused her significant and lasting distress.  It was certainly not “frivolous” or a “joke”.  It was a criminal offence. 

I am concerned to see from the criminal justice social work report that you take only partial responsibility for these offences and that you blame your victims. The first employee who was the victim of indecent assaults may have stayed in your employ over an extended period but I found she protested and that you were abusing your position as her employer.  The second victim of an indecent assault left your employ on being assaulted and the young woman customer you sexually assaulted made it quite clear that your sexual advances were unwelcome.  I accept that you are assessed as of low risk of reoffending either generally or sexually, but I am concerned that the report does not address the final offence which did not involve an employee, but a young woman who was a member of the public. I have considered and rejected a financial penalty as this will not mark the seriousness of the offences.    I am told there is little focus for any intervention and all supervision will do is put monitoring into place.  This will occur in any event as you will be on the Sex Offenders’ Register.  In these circumstances I cannot consider this an appropriate case for supervision.  I have also rejected the possibility of unpaid work, or seeking a further assessment for a restriction of liberty order.  Criminal behaviour of this nature, over this period, aggravated by your position as employer in the case of two of the victims and the consequences for the third who was a young member of the public in your pub means I consider I have no alternative but to impose a sentence of custody.  No other penalty is appropriate to mark the nature and seriousness of your conduct.  You will serve a sentence of 8 months imprisonment, in total, for all the offences on the complaint.

In addition you will remain on the Sex Offenders’ Register for a period of 10 years from 27 February, which was the date of your conviction”.