Appellant: A Ogg; Gilfedder McInnes

Respondent: A Prentice, QC AD; the Crown Agent

21 February 2013

[1] The appellant drove a commercial vehicle on a lengthy journey on a rural road when intoxicated, being four times the legal limit. Prima facie therefore the sheriff's sentence, including as it did a prison sentence of 100 days (discounted from 150), was appropriate. However, in terms of section 204(2) the sheriff had to consider whether no other method of dealing with the appellant was appropriate. We have also been referred to the case of Russell v Troup 2003 SCCR 753 where, in similar circumstances, an adjustment was made to the sentence imposed.

[2] In this particular case, we note that the appellant is aged 54. He has been driving for thirty years, without any trouble. He has one minor non‑analogous conviction dated 2002, relating to parking on a pelican crossing. He has never been in custody. He has a strong work ethic and a good work record. He had found alternative employment as a labourer but unfortunately, when the sentence was imposed, lost his job and is currently on job seeker's allowance. He has expressed remorse and disgust with himself for having had this lapse. He has no drink problem, but may be more affected by drink because he does not drink on a regular basis. He has no cases outstanding.

[3] Bearing all these factors in mind, and also the terms of section 204(2), we consider that the sheriff erred in his disposal in this case, and that the aims of retribution, deterrence and protection of the public can be met by disqualification and by a non-custodial disposal. Accordingly we leave the disqualification at the level fixed by the sheriff, but we quash the custodial sentence and substitute therefor a community payback order with 200 hours (reduced to 150 hours in respect of the plea) of unpaid work in the community.

DL