APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: XC1217/03
OPINION OF THE COURT
delivered by LORD JUSTICE CLERK
HER MAJESTY'S ADVOCATE
CRAIG NORMAN FLEMING
Appellant: Mulholland AD, Solicitor Advocate; Crown Agent
Respondent:Shead; George More & Co
9 January 2004 On 3 October 2003 at Jedburgh Sheriff Court the respondent pled guilty to the following charge:
"On 13 September 2003, at the Bank of Scotland ATM, The Square, Kelso, you Craig Norman Fleming did assault Keith Thomas Blake, c/o Lothian and Borders Police, Kelso, by holding a knife to his chest and threatening him therewith and did rob him of £100."
On 23 October 2003 Sheriff G C Warner ordered that the respondent should be the subject of a probation order for a period of 18 months with a requirement that he should carry out 200 hours of community service. The Crown has appealed against the sentence. The incident occurred at about 2 pm on a Saturday afternoon in a busy area in the centre of Kelso. The complainer, who was aged 44, went to an ATM machine to withdraw £100. The respondent appeared at his side and held a long, serrated knife to his chest. He then seized the money from the machine. He shielded his actions from public view with the coat that he was holding; but a passer-by heard mention of a knife, looked more closely and saw what was happening. The respondent ran off, pursued by the passer-by, and was detained by the police soon after. He told the police that he had thrown the money and the knife into the river. At the date of sentencing, about six weeks after the incident, the complainer, according to the sheriff's report "was still very shaken."  The respondent was 28 years old at the time of the incident. He had been addicted to drugs for about two years. He was unemployed and receiving benefits. He gave prompt notice under section 76 of the Criminal Procedure (Scotland) Act 1995 of his intention to plead guilty. He had four previous convictions, all of them at summary level, and had not had a custodial sentence.  The social enquiry report was not, in our view, favourable to the respondent. It did not support the view that he was seeking to rehabilitate himself. It merely recorded that he had been clear of all drugs since being remanded in custody. It assessed him as being at high risk of re-offending and at medium risk of harm to the community because of the nature of the offence. The author of the report said "[The respondent] is willing to comply with the conditions of a community service order, although I would not like to vouch for his fitness to do so." The sheriff also had a letter from a general practitioner in Kelso which, in the view of the sheriff, indicated that the respondent appeared to be taking at least some steps towards getting himself help for his addiction.  The sheriff reports that he gave "very serious consideration" to a custodial sentence. His principal reasons for his more lenient disposal were that the crime had been the act of a desperate man; that it was worth making the attempt to straighten out the life and lifestyle of the respondent "before he became entrenched in the hopeless cycle of offending so frequently seen amongst drug addicts", and that the respondent had taken the first steps to seek professional help for his addiction.  The advocate depute submitted that the disposal was unduly lenient. This was a random attack on a member of the public, committed in broad daylight in a busy public area and involving the use of a knife. The money had not been recovered. The complainer had suffered severe shock.  Counsel for the respondent submitted that the disposal could not be said to be unduly lenient. The sheriff had taken into account considerations of punishment, deterrence and rehabilitation. He had considered custody as an option. Since the respondent had not been sentenced to imprisonment before, the sheriff had to be satisfied, before he could impose such a sentence, that that was the only suitable disposal. The sheriff recognised that if the accused could conquer his addiction, he would be less likely to re-offend. The community service order included an element of retribution and deterrence. The Crown had elected not to indict the case in the High Court. The respondent's plea of guilty at the first opportunity was a significant mitigating factor (Du Plooy v HM Adv, 2003 SCCR 640).  In our opinion, the sheriff's disposal was unduly lenient and should be set aside. The robbery of a member of the public at knife-point at an ATM is a particularly unpleasant and frightening crime. There was an obvious degree of premeditation. The crime was aggravated by the effects of it upon the complainer and by the fact that the money was not recovered.  In our opinion, the letter from the local general practitioner did not justify the sheriff in concluding that the respondent was taking steps to deal with his addiction; but in any event the more important consideration was the unfavourable tenor of the social enquiry report, particularly in its assessment that there was a high risk of the respondent's re-offending.  We shall therefore allow the appeal. We shall call for an up to date social enquiry report and continue the case for a hearing on the sentence that should be imposed.