Appellant: Collins, Solicitor Advocate; Capital Defence, Edinburgh

Respondent: Rodger, AD; Crown Agent

9 August 2012

[1] This was a very grave offence involving as it did the surreptitious theft of cash from an elderly, vulnerable gentleman suffering from dementia. It was a gross breach of trust, as the appellant was at the time of the offence a home carer for the victim. The anxiety, distress, upset and inconvenience caused to relatives seeking to find out why cash was disappearing is one of the factors to be taken into account. Prima facie therefore the sheriff's choice of a custodial disposal was appropriate.

[2] However, section 204(2) of the Criminal Procedure (Scotland) Act 1995 is in the following terms:

"A court shall not pass a sentence of imprisonment on a person of or over 21 years of age who has not been previously sentenced to imprisonment or detention by a court in any part of the United Kingdom or in another Member State of the European Union unless the court considers that no other method of dealing with him is appropriate."

[3] On a careful reconsideration of all the circumstances of the case, we have reached the view that some important factors were either not taken into account, or were given too little weight. In particular, the appellant is a first offender aged 52. The court must therefore make sure that there is no suitable alternative to custody. Secondly, the appellant has been punished to some extent already. She can no longer hope to be employed in the home care business, or indeed as any sort of carer. We should add in that context that the whole of her adult life has been given to caring and the caring profession, and that is a matter of importance. Thirdly, the appellant is suffering from anxiety and depression as a result of these proceedings. It appears from what Mr Collins has drawn to our attention that she and her family have had to suffer the shame and opprobrium that this sort of offence attracts from society. Fourthly, she has been assessed at low risk of reoffending. Fifthly, we take into account letters of support, which have been sent to the court. Sixthly, she has been assessed as suitable for unpaid work in the community. Ultimately, we have concluded that, bearing in mind the direction in section 204(2), there is a suitable alternative in the present case and that is eighteen months of probation with 200 hours unpaid work in the community. We therefore allow the appeal, quash the sentence imposed, and substitute eighteen months probation with 200 hours unpaid work.

DL