Scottish High Court of Justiciary Decisons

BRIAN ROBERT MACLEAY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 77 (20th July, 2000)

In this continued appeal the appellant is Brian Robert MacLeay who was convicted after trial at the Sheriff Court at Tain of charges 1, 2, 3, 4, 5, 6, 8, 9, 11, 12, 13, 14 and 15 on the indictment.

Charge 15 was a charge of obtaining four paintings by fraud. All the other charges were charges of reset. Charges 1 to 6, 8 and 9 were all involved the reset of vehicles; charge 11 involved the reset of a pressure washer, charge 12 reset of a diesel generator, charge 13 reset of a quantity of shell fish and charge 14 reset of a painting. The charges covered a period from about January 1992 until November 1996. There is no information in the papers before us as to the total value of the property involved.

The appellant appealed against conviction but that appeal was refused by this Court on 18 February 2000. In fact, at the trial, most of the evidence was agreed and the only live issue, which the jury resolved against the appellant, was whether he had the guilty knowledge for reset. The Sheriff imposed a sentence of fifteen months' imprisonment and the appellant has appealed against that sentence.

In presenting the appeal today, and under reference to the grounds of appeal, Miss Scott submitted that the appellant fell to be treated as virtually a first offender. It was true that he had one previous conviction at sheriff summary level in September 1978, but otherwise he had been of good behaviour. Having regard to its age, we would not attach weight to that conviction as such for the purpose of sentence, but we do consider it relevant to notice that it was indeed a conviction for reset. So the appellant was found guilty on this occasion of an offence, but on a very much larger scale, of which he had first been convicted all these years ago.

On behalf of the appellant it was said that he had made good the losses of all those who were complainers in the offences of which he had been convicted. In making that submission Miss Scott was putting the matter differently from the way in which it had been put in the second ground of appeal where it was merely maintained that he had made good the losses of persons involved in charges 8, 9 and 15. He had also, it was said, offered to reimburse the wronged party in charge 15 with the full face value of the cheque concerned, but otherwise in the grounds of appeal it was said that he had in effect been precluded by the terms of confiscation proceedings from making full recompense. Miss Scott said that the confiscation proceedings had been abandoned and that, contrary to what was said in the grounds of appeal, full recompense had been made. We are prepared to treat the matter on the basis that that is indeed the position.

It was also said on behalf of the appellant that he was a businessman involved in the running of a business which concerned the export of shell fish, a business at present going under the name of Sutherland Game & Shell Fish. Although it was a family business in which other members of his family were involved, it was one where he had a very significant role. Indeed, although his son was involved in the running of the business, he was not yet sufficiently experienced to be able to assume the full role which the appellant usually played. It was therefore said that the effect of a custodial sentence would be to prejudice the business with possible consequences for the livelihood of those who depend on that business.

More generally, Miss Scott submitted that the appellant was somebody who had, as she put it, "learned his lesson". His attitude to the offence was to be gleaned from the social enquiry report where the social worker described the appellant as being helpful and open. The social worker also indicated that the appellant thought that he had been a mug and was very aware of the consequences of the conviction, not just on his own reputation, but on the reputation of his business. He appeared to the social worker as a family man who felt very acutely the shame which he had brought on his family and the anxiety which he had caused to them.

Perhaps the most difficult point to understand in the whole circumstances is that the appellant has apparently had a successful business and therefore is not somebody who was in financial difficulties, nor whose offences could be said, according to counsel, to have been motivated by a desire for financial gain. On the other hand we notice that the offences must indeed have resulted in some financial gain to the appellant - and this, of course, Miss Scott did not seek to contradict.

Counsel's submission, however, was that in choosing to impose the custodial sentence of fifteen months, the Sheriff had gone wrong because he had failed to take sufficient account of the fact that the appellant had only one previous analogous conviction. More generally, he had failed to give sufficient weight to all the various personal circumstances which we have described.

The appellant was in custody following the sentence from 14 October 1998 until 7 January 1999 when he was released on interim liberation. He has been on interim liberation ever since and Miss Scott drew attention to the fact that the appeal had taken a considerable time to resolve. More importantly perhaps, she pointed out to us that, shortly after being released on interim liberation, the appellant had been diagnosed as suffering from diabetes and then in August 1999 he had suffered a heart attack. She put before us two letters from his consultant physician and cardiologist at Raigmore Hospital in Inverness dated 9 May and 12 July 2000. The second of these in particular pointed out that the treatment of the appellant for his heart condition had been successful. In those circumstances counsel did not suggest that imprisonment would in fact cause any deterioration of his heart condition. But, nonetheless, she said, it was a matter which the Court should take into account in assessing the whole matter.

Her overall submission was that the Court should continue the appeal until a date to be afterwards fixed for the preparation of a report as to the suitability of the appellant, in particular in view of his recent heart condition, for community service. That, she said, was the clear alternative to the imposition of a period of imprisonment and it was, in effect, the sentence which the Sheriff should have imposed.

The question for this Court is whether we can properly regard the sentence selected by the Sheriff as excessive in the circumstances. We bear in mind all the matters which Miss Scott has put before us, but it is also important to recall that the offences of which the appellant was convicted were offences of dishonesty carried out over a period of more than four years. Moreover, on the presentation of the facts on behalf of the appellant, he was not under any financial or other pressure which might have explained why he resorted to this course of dishonesty.

Having regard to the nature of the offences and to the period over which they were committed, we find it impossible to say that the sentence of fifteen months' imprisonment was excessive. The appeal must accordingly be refused.