Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_56.html
Cite as: [2018] HCJAC 56, 2018 GWD 31-400, 2018 SLT 1249, [2018] ScotHC HCJAC_56

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Lord Malcolm

Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2018] HCJAC 56

HCA/2018/000216/XC

OPINION OF THE COURT

delivered by LORD TURNBULL

APPEAL AGAINST SENTENCE

JANET FARQUHAR

against

HER MAJESTY’S ADVOCATE

Appellant: G Markie; Capital Defence Lawyers

Respondent: M Hughes, ad hoc; Crown Agent

Appellant

Respondent

24 July 2018

[1] The appellant is 70 years old and appeared before the court as a first offender. She

pled guilty to a charge of embezzlement, committed over a period of eight years, whilst she

was acting as the treasurer of Chalmers Memorial Church in Port Seton. The total sum

involved was £72,155.34. The sentencing sheriff imposed a period of 18 months

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imprisonment, discounted from the period of 2 years which he would otherwise have

imposed but for the appellant’s early plea of guilty.

[2] The circumstances of the offending are these. In 1999 the appellant took on the role

of treasurer of the church mentioned. In 2016 it emerged that the church appeared to be

behind in the contributions which it owed to the Church of Scotland. A subsequent enquiry

ascertained that over the years between 2008 and 2016 the appellant had issued cheques

from the church bank account, payable to herself, totalling a little under £60,000. It emerged

that a further sum in the region of £12,400 had also been embezzled, this being money which

the appellant had failed to bank from the church’s collection sums.

[3] By the time the appellant appeared before the sheriff for sentence she had repaid the

sum of £15,000. She was also suffering from significant health difficulties. As a result of a

fall in 2008 she was left with reduced mobility in her left arm and required the use of two

stick to mobilise. Further associated conditions required treatment in the form of antibiotics

and dressings. The sheriff was informed that the appellant had fallen into debt having

attempted to secure repairs to her house which was in a poor state of maintenance. It was

said that the money which the appellant began taking from the church was used to pay

credit card debts and general living expenses. It was submitted that she was remorseful and

embarrassed over her conduct. Barring a period of a few years after the birth of her son, the

appellant had been in employment since leaving school at age 17 until her retirement

aged 62. Her husband had died after a period of illness in 2016 and prior to his death she

had been his carer for some time.

[4] In these combined circumstances, and bearing in mind the protection afforded to the

appellant as a first offender in terms of section 204(2) of the Criminal Procedure (Scotland)

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Act 1995, the solicitor appearing on the appellant’s behalf submitted that the case could be

dealt with by a non-custodial sentence.

[5] In support of this submission the sheriff’s attention was drawn to a number of cases

in which non-custodial sentences had been imposed in relation to cases of theft and fraud

involving significant sums of money. As part of the overall submission it was suggested

that the sheriff might defer sentence to permit the appellant’s house to be sold and to allow

her to repay all of the outstanding sum embezzled. The sheriff declined to give effect to the

submission made on the appellant’s behalf. Leave to appeal was granted challenging the

imposition of a custodial sentence and, in the alternative, the length of the sentence selected.

[6] In support of the appeal it was submitted that whilst on the face of matters a

custodial sentence could be said to have been warranted, certain circumstances existed

which would entitle the court to interfere. Mr Markie, who appeared on the appellant’s

behalf, explained that the entire balance of the outstanding sum embezzled had now been

repaid. He also explained that the proceeds of crime proceedings which had been operating

in parallel with the appellant’s conviction had now been withdrawn. The appellant had

instructed solicitors to market her property and our attention was drawn to a further

deterioration in the appellant’s health.

[7] In these combined circumstances Mr Markie submitted that a non-custodial sentence

could be imposed and, if we did not agree with that submission, that a shorter custodial

sentence was appropriate.

[8] In his report to this court the sheriff explained that he selected the sentence which he

did because of the gravity of the offence, which included a gross breach of trust. He took the

view that the appellant’s offending constituted a sustained and calculated course of conduct

and that the offence was aggravated by the large amount taken and by the period of time

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over which the offence occurred. He declined to accept that the appellant was genuinely

remorseful given certain attempts which had been made to avoid responsibility once the

church enquiry had commenced. The sheriff also explained that, in his view, there was a

need to impose not only an appropriate sentence but one which deterred others. He

explained that in acknowledgement of the fact that prison would not be a comfortable

experience for the appellant he took a lower starting point than he would otherwise have

selected. He also explained that the cases which were drawn to his attention could be

distinguished on their facts, not least having regard to the large sum involved in the present

case.

[9] We accept immediately that the offence to which the appellant pled guilty was a

serious one. As set against that, the appellant’s personal circumstances, in particular her

age, her lengthy period of constructive employment and her medical conditions, constitute

powerful mitigating factors. We also consider that certain errors can be identified in the

sheriff’s approach. On the information available there appeared to be no reason for the

sheriff to suppose that a deterrent sentence was required. Nor does he explain why he

arrived at that conclusion. It also appears that but for the appellant’s health the sheriff

would have been inclined to impose an even more severe sentence, despite the other

mitigating factors available. Whilst the sum involved in the present case is, on the face of it,

more substantial than the sums of £23,000 and £20,000 respectively which were involved in

the cases of Dolan v Her Majesty’s Advocate 1986 SCCR 564 and White v Her Majesty’s Advocate

1987 SCCR 73, to which the sheriff’s attention was drawn, an appropriate comparison is not

gained without taking account of the effect of inflation over the years. Applying an

appropriate adjustment to take account of this, the cases of Dolan and White involved sums

not so dissimilar to that involved in the present case. To this extent we consider that the

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sheriff may have been too hasty in dismissing the assistance which might be available from

the disposals in those cases.

[10] We have also reminded ourselves of the terms of section 204 of the Criminal

Procedure (Scotland) Act 1995 which provides, in sub-section (2), that a court shall not pass

a sentence of imprisonment on a person of or over 21 years of age who has not previously

been sentenced to imprisonment unless the court considers that no other method of dealing

with him is appropriate. Sub-section (2A) provides that in determining whether any other

method of dealing with such a person is appropriate the court shall take into account:

(a) such information as it has been able to obtain from an officer of the local authority or

otherwise about his circumstances and (b) any information before it concerning his character

and mental and physical condition.

[11] The circumstances which now pertain are that the appellant has secured repayment

of the entire sum embezzled. That is an important consideration. The appellant also served

a period of around seven weeks in custody between the imposition of the sentence and the

grant of interim liberation. Taking account of the assistance which we consider can be

gained from the cases of White and Dolan, and the whole circumstances of the appellant’s

case, including the information provided in the criminal justice social work report, her age,

her previous lengthy good character and her physical condition, we are not persuaded that

the test provided for by section 204(2) has been met.

[12] In these circumstances we shall give effect to the principal submission made on the

appellant’s behalf and we shall quash the sentence of imprisonment imposed. In its place

we shall impose a fine in the sum of £15,000, to be payable within one year of today’s date to

the sheriff clerk’s office in Edinburgh.