Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 41

HCA/2017/000197/XC

Lady Paton

Lord Glennie

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST SENTENCE

by

JOHN COOK

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  B Gilfedder (sol adv); Gilfedder McInnes LLP

Respondent: Hughes AD;  Crown Agent 

30 May 2017

[1]        The sheriff was correct in his assessment of the nature and gravity of the offence in this case.  Nevertheless we consider that insufficient weight was given to the following factors:  First, previous good character, as the appellant is a first offender.  Secondly, the fact that he is unable to read or write, which possibly affected the way in which the offence occurred in that there appeared to be no real planning or premeditation.  Thirdly, real remorse has been expressed by the appellant.  Fourthly, the relevant reports indicate that there is no risk of reoffending.  Fifthly, the appellant is in poor health and (without going into any detail) requires nine medications per day.  Sixthly, he and his family have managed to repay the amount which was outstanding (£35,600).  Seventhly, the appellant has been assessed as capable of doing light duties in the course of unpaid work.

[2]        We note, of course, the guidance given in the case of Gill v The Procurator Fiscal, Glasgow [2010] HCJAC 99.  However it is there specifically observed that each case must depend on its own facts and circumstances (whether of a mitigatory or an aggravating character) and that the court must consider each case on the basis of its own circumstances. 

[3]        In this particular case, we consider that the aims of deterrence, retribution and rehabilitation can be met by a non-custodial disposal.  We shall therefore allow the appeal, quash the sentence of 18 months and substitute therefor a Community Payback Order of 2 years with a condition of 250 hours unpaid work to be completed within 1 year. 

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 41

HCA/2017/000197/XC

Lady Paton

Lord Glennie

OPINION OF THE COURT

delivered by LADY PATON

in

APPEAL AGAINST SENTENCE

by

JOHN COOK

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant:  B Gilfedder (sol adv); Gilfedder McInnes LLP

Respondent: Hughes AD;  Crown Agent 

30 May 2017

[1]        The sheriff was correct in his assessment of the nature and gravity of the offence in this case.  Nevertheless we consider that insufficient weight was given to the following factors:  First, previous good character, as the appellant is a first offender.  Secondly, the fact that he is unable to read or write, which possibly affected the way in which the offence occurred in that there appeared to be no real planning or premeditation.  Thirdly, real remorse has been expressed by the appellant.  Fourthly, the relevant reports indicate that there is no risk of reoffending.  Fifthly, the appellant is in poor health and (without going into any detail) requires nine medications per day.  Sixthly, he and his family have managed to repay the amount which was outstanding (£35,600).  Seventhly, the appellant has been assessed as capable of doing light duties in the course of unpaid work.

[2]        We note, of course, the guidance given in the case of Gill v The Procurator Fiscal, Glasgow [2010] HCJAC 99.  However it is there specifically observed that each case must depend on its own facts and circumstances (whether of a mitigatory or an aggravating character) and that the court must consider each case on the basis of its own circumstances. 

[3]        In this particular case, we consider that the aims of deterrence, retribution and rehabilitation can be met by a non-custodial disposal.  We shall therefore allow the appeal, quash the sentence of 18 months and substitute therefor a Community Payback Order of 2 years with a condition of 250 hours unpaid work to be completed within 1 year.