SENTENCING STATEMENTS

On sentencing Lord Erict made the following remarks in court:

"Kerr Anthony McKenzie, you have been found guilty by the jury of  2 charges.  Charge 1 is breach of section 1 of the Domestic Abuse (Scotland) act 2018.  Charge 2 is breach of section 2 of the Sexual Offences (Scotland) Act 2009 by digital penetration of the anus.  The jury deleted from charge 2 a domestic abuse aggravation.

I am of course, sentencing you for the charges on which you were found guilty, and not for the much more serious matters on the indictment on which you were acquitted.

I have given careful consideration to all that has been said on your behalf.  You have no previous convictions.  You have otherwise led a pro-social life.  I have received a number of testimonials.  I have also considered the Victim Impact Statement.

I have also considered the Justice Social Work Report.

The Report  does not proceed on a full understanding of your case.

Firstly, the Report states that the Indictment provides a detailed account of a protracted period of domestic abuse including stalking, intimidation threats and sexual abuse.  That is an accurate description of the indictment of which you were charged but is not an accurate description of the charges on which you were convicted.  You were not convicted of any charges of domestic abuse which involved sexual abuse.  The jury deleted all the sexual abuse from charge 1.  The jury deleted the domestic abuse aggravation from charge 2.  The jury unanimously found you not guilty of charge 3, which was a sexual assault aggravated by domestic abuse.  An accurate description would be that you had been convicted of one charge of domestic abuse which was non sexual and one charge of sexual assault which was not domestic abuse.

Secondly, I also note that the Justice Social Work report makes reference to you continuing to cite examples where you felt the complainer’s behaviour had been abusive.  In that respect, the Report does not proceed on a proper understanding of the facts.  At the trial there was credible corroborated evidence that would have justified domestic abuse and assault charges being brought against the complainer.  There was also evidence of her having been removed to a police station in regard to such incidents.  However you did not make a complaint in relation to these incidents and so she was not charged.  In these circumstances you cannot be criticised for expressing a view that you felt that her behaviour had been abusive in these respects.

I mention these two issues with the Justice Social Work Report so that the correct position can be taken into account in programme work.  A copy of this Sentencing Statement will be provided to the Social Work Department so that they are aware of the correct position when planning programme work.

I turn now to sentence.

I am proposing to impose a Community Payback Order upon you today.  The Community Payback Order will require you to undertake a number of requirements that I am going to explain to you.  You should listen carefully as I will ask you firstly to confirm that you understand the terms of the Order that I am going to impose and secondly, that you are willing to comply with the Order.

A Community Payback order is a punishment that requires you to pay back to the community for the offences that you have committed.  I am satisfied that the offences are serious enough to warrant imposition of this Order.  The Order will be a cumulo order covering both charges.

From today,  you will be subject to a Community Payback Order.  The Order will include the following requirements:

1. a Programme requirement that will require you to take part in the Caledonian Programme, which is a programme for men convicted of domestic abuse offences.  While you are attending you must comply with any instruction given to you by or on behalf of the person in charge of the programme.  This requirement is imposed for the purpose of addressing your offending behavioural needs.
   
   
2.  a Conduct requirement that:
   
   (a)    You shall not approach or communicate in any way, or attempt to approach or communicate in any way, either directly or indirectly, with the complainer in this case without the prior approval of your supervising officer and subject to any restrictions that your supervising officer may impose, and you shall immediately report any unavoidable or inadvertent approach or communication in any way to your supervising officer
   
   (b)   You shall immediately inform your supervising officer of any friendships, associations or intimate or domestic relationships you enter into with anyone.
   

I am satisfied that this requirement is necessary with a view to securing or promoting good behaviour and preventing you from further offending.  This requirement will be for the period of the Community Payback Order, that is 2 years.

And

3.  an Offender Supervision requirement for a period of 2 years.  During this period you must attend appointments with your responsible officer at the place and times instructed, for the purposes of promoting your continuing good behaviour. 

While the Order is in force, you should report any change to your address  to your responsible officer.

If you fail to comply with any of the requirements that are being imposed in this Order, you will be reported back to this court and be dealt with for that failure.  The Court will either issue a warrant for your arrest or you will be cited to come to court.  If it is proved that you failed to comply without reasonable excuse with the terms of any requirement, the court can fine you, revoke the order and deal with you as if the order had not been imposed, revoke the order and sentence you to imprisonment, vary the order to impose a new requirement or vary, revoke or discharge any requirement imposed by the Order, or impose both a fine and vary the Order.

This Order is a sentence.  If your circumstances change while the order is in force, you or your supervising officer will be entitled to apply to the court to have the order varied, revoked or discharged.

In view of the condition not to contact the complainer in this case which I have just imposed in relation to the Community Payback Order it is not necessary for me to make a non-harassment order.

You will be subject to the notification requirements under the Sexual Offences Act 2003 for the period of the Community Payback Order, that is two years.