Appellant:  S Collins, Solicitor Advocate;  Capital Defence Lawyers (for Basten Sneddon, Dunfermline)

Respondent:  H Carmichael, AD;  Crown Agent

3 February 2015

[1]        On 10 December 2014, the sheriff at Dunfermline sentenced the appellant to six months imprisonment, discounted from nine months in the light of his plea of guilty to a charge of having embezzled £8000 from his employer.  That embezzlement had taken place over a period of just over three months. 

[2]        The appellant had been in a significant position of trust. He was a sales manager of a building and roofing supply company, some of whose customers were in the habit of paying cash.  The appellant received that cash on behalf of his employer but, during that three month period, he had been retaining it for himself. 

[3]        The matter came to light when customers who had paid cash to the appellant started receiving, from the company’s head office, demands for payment.  The appellant had apparently been in financial difficulty due to having had a continuing liability to pay the debts of the business which he had previously sold to his employers. 

[4]        He appeared before the sheriff as a first offender, was assessed as not presenting a risk of further offending and as being suitable for a community based sentence.  However, the sheriff considered that since this was a serious breach of trust by a manager who, in the normal course of his work, handled significant sums of his employer’s money, only a custodial sentence could be appropriate.  The sheriff also observed that, although the criminal justice social work report had recommended a non-custodial sentence, it had done so on the basis of the appellant having provided a different, somewhat exculpatory, account of events which he now accepted was not true; in any event any such recommendation was made on the basis of an assumption that the court was not satisfied that there was no alternative to a custodial sentence. 

[5]        Before us today Mr Collins indicated that it was accepted that this was a serious charge. The appellant had, however, repaid £4000 of the sum embezzled. He had admitted responsibility to the police, he had made full admissions and whatever was the background to what was said in the social enquiry report, his having made those admissions was a significant matter.  He submitted that the sentence should be quashed and a community payback order now imposed in its place.  

[6]        We are not persuaded that the sheriff imposed a sentence which was unjust.  The criminal justice social work report did not tie the sheriff’s hands.  We accept that its ability to assist the sheriff was limited to some extent by being based on an erroneous representation as to the precise details of the circumstances of this offence.  We cannot conclude that custody was not called for in this case. There was a significant breach of trust which carried on over a three month period. We are, further, satisfied that the length of sentence arrived at by the sheriff was entirely appropriate in the circumstances.  As for the repayment of part of the money embezzled, the sheriff did have regard to that and we cannot say that that repayment was, of itself, sufficient to require the sheriff to impose a non-custodial sentence.

[7]        This appeal is accordingly refused.