HER MAJESTY'S ADVOCATE v. JOHN FRIEL DRAIN and ALASTAIR THOM

Respondents: Brown; Gallagher & Co. (Kirkintilloch): Shead; Richard J. Lobjoie & Co.

In this Crown appeal against sentence the respondents are John Friel Drain and Alastair Scott Thom who appeared on indictment in the Sheriff Court at Glasgow on various charges of assault. Drain was sentenced to 300 hours and Thom to 240 hours of Community Service. The question for this court is whether those sentences were unduly lenient and in particular whether only custodial sentences would have been appropriate.

Drain pled guilty to four charges. Charge 2 related to an incident at the premises of the Kirkintilloch Miners Welfare Club. The other charges to which the respondents pled guilty all occurred in a public street in Kirkintilloch to which they had made their way after the incident in Charge 2.

Charge 2 was an assault to injury on Mr. Dick, aged 63 years of age, the Convenor of the Miners Welfare Club. Drain seized hold of the complainer by the arm, pulled him forcibly from the premises, knocked him to the ground and repeatedly punched and kicked him on the head. The complainer suffered two black eyes, with cuts and bruising to his mouth and nose. Both his dentures were cracked.

Charge 6 was an assault to injury, involving both Drain and Thom. The complainer was a Mr. Brannan, aged 43. He was pulled to the ground and then, using a wall and railing to gain purchase, Thom kicked the complainer on the head and body. Drain joined in and kicked him on the head. When the complainer fought back, Thom pulled Drain out of the way and attempted to kick the complainer on the head but, losing his balance, kicked him on the body.