Appellant: Collins, Solicitor Advocate; MTN Defence, Falkirk

Respondent: McKenna A.D.; Crown Agent

28 October 2010

[1] There is no doubt that the offence to which the appellant pled guilty was a serious one, involving as it did her wrongfully obtaining benefits amounting to a figure in excess of £10,000. The offence was committed over a period of approximately 18 months. It is clear from the recently decided case of Gill and Others v Procurator Fiscal, Glasgow [2010] HCJAC 99 Unreported 7 October 2010 that a benefits fraud of that nature could well result in a prison sentence.

[2] The appellant appeared before the court as a first offender. When considering whether it was appropriate to impose a prison sentence in the present case, it was incumbent upon the sheriff to pay full account to all the factual circumstances placed before him. Those factual circumstances were set out in the social enquiry report that was prepared. They include that the appellant has a long history of depression, that she has suffered five miscarriages and that the offence had been committed when she was pregnant with her second child. In his report to this court, the sheriff has set out very clearly his reasons for imposing the custodial sentence he did.

[3] The solicitor advocate who appeared for the appellant argued that the sheriff had erred in taking the view that a custodial sentence was the only appropriate disposal. In his written submissions and during the hearing of the appeal, the solicitor advocate amplified on the contents of the social enquiry report. He suggested that the appellant had to be viewed as having a vulnerable personality. He stressed that the appellant's claim for benefit had started out as a legitimate one. It had become illegitimate when she had failed to declare to the authorities a change in her personal circumstances. That change had related to her relationship with her partner, who, whilst he had been in employment, had in the event proved to be unreliable in his support of the appellant and her children. During the period the offence was committed, the partner drank to excess and abused drugs. He was frequently absent from home for days on end and had failed to support her regularly or adequately. As a consequence, the appellant had struggled to make ends meet. The relationship between the appellant and her partner was now at an end. The couple were separating.

[4] The appellant's solicitor advocate also explained the steps that the appellant was taking to repay the sum she had obtained by fraud. She was repaying £250 a month. A total of £2000 had been repaid.

[5] Having considered all the information placed before us we have reached the conclusion that it cannot be said that this is a case in which the only appropriate method of dealing with the appellant was to impose a prison sentence of the length the sheriff did. In reaching that conclusion we agree with the submission that the appellant falls to be considered as having a vulnerable personality, who has encountered a number of difficulties in the past. We also have regard to the steps that the appellant has taken, and is continuing to take, to repay the funds she wrongly obtained. In these circumstances provided the appellant is prepared to agree to undertake a community service order of 200 hours, we are minded to quash the sentence of imprisonment of 8 months imprisonment.