Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 69

HCA/2016/000258/XC

Lady Paton

Lady Clark of Calton

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST SENTENCE

by

SCOTT GOLDIE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Jones;  Beaumont & Co

Respondent:  Hughes AD;  Crown Agent

2 August 2016

[1]        The sheriff was correct to view these offences as serious, involving as they did brandishing a knife (which was not, however, used) and punching a 17 year old complainer.  We note the consequences for the complainer, involving, amongst other things, extensive dental treatment. 
[2]        However, we have been persuaded that certain mitigating circumstances should have been given greater weight.  In particular, at the time of sentencing, the appellant had a minor record consisting of a totting-up driving disqualification (2004) and a breach of the peace (2014).  As a result, he had never before served a prison sentence.  Secondly, he had 20 years public service in the Navy, holding a number of responsible positions.  In a character reference, he is described as “consistently providing command with a high level of successes during both the training and operational phases of his employment”.  That reference goes on to give a generally positive assessment of the appellant.  The assessment, coming as it did from the Navy, is one to which we give considerable weight.  (We understand that the character reference was not available to the sheriff court). 

[2]        Another matter we take into account is that, as a first offender with the background we have just described, the appellant qualifies for the protection afforded by section 204 of the Criminal Procedure (Scotland) Act 1995.  The sentencing sheriff had to be of the view that there was no appropriate disposal other than custody. 

[3]        We consider that, viewing the whole circumstances of the appellant’s case, including his previous pro-social-work and family-orientated life, the fact that he still has the support of his family (both now, and at the time of sentencing) and the fact that he would be likely to cooperate with any community disposal, a non-custodial alternative was available, despite the admitted gravity of the offences.  That non-custodial alternative should, in our view, have been selected. 

[4]        The position now, as we understand it, is that the appellant has spent some months in custody.  We take that into account.  We also understand that he would be willing to participate in community based work. 

[5]        In all the circumstances, we shall quash the custodial sentence and substitute therefor a one year community payback order with certain conditions.  The first condition is unpaid work of 100 hours to be completed within the year, and the second matter is an undertaking to participate in such anger management and dispute resolution program or programs as ordered by his supervising officer.  

[6]        For these reasons, the appeal is allowed.