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URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_37.html
Cite as: [2005] ScotHC HCJAC_37, [2005] HCJAC 37

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Allison v. Procurator Fiscal [2005] ScotHC HCJAC_37 (17 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Macfadyen

Temporary Judge C.G.B. Nicholson, C.B.E., Q.C.

 

 

 

 

 

 

 

 

 

 

[2005HCJAC37]

Appeal No: XJ1965/04

OPINION OF THE COURT

delivered by LORD MACFADYEN

in

NOTE OF APPEAL AGAINST SENTENCE

by

ALEXANDER NELSON ALLISON

Appellant;

against

PROCURATOR FISCAL, Stranraer

Respondent:

_______

 

 

Appellant: Gilchrist; Balfour & Manson

Respondent: Mrs. Hughes, A.D.; Crown Agent

 

17 March 2005

 [1]      The appellant was charged on summary complaint that:

"on various occasions between 1 July 2004 and 12 July 2004, both dates inclusive, at Safeway Petrol Station, London Road, Stranraer, where [he was] then employed, [he] did steal £120".

 [2]      At the pleading diet on 6 December 2004 the appellant pled guilty as libelled. A schedule of previous convictions was tendered, which disclosed four previous convictions, three of which were for offences of dishonesty. In respect of two of these the appellant had been sentenced to short terms of imprisonment. The dates of the convictions which attracted the sentences of imprisonment were 3 December 1984 and 8 October 1986.

[3]      The circumstances of the present offence were that at the material time the appellant was employed to run the petrol station. As a result of devising a means of abusing a discount scheme in operation at the petrol station, the appellant was able to take money from the till in a way that was not discovered until a full audit was carried out. When that was done, it was found that in the period covered by the libel he had stolen £120. At the time of sentence no repayment had been made.

[4]      The sheriff took the view that the appellant's offence was a serious offence of dishonesty. It involved breach of the trust reposed in him by his employers. He was no stranger to dishonesty. For these reasons the sheriff took the view that no sentence other than imprisonment was appropriate.

[5]      The sheriff indicates in his report that he would have regarded a sentence of six months imprisonment as appropriate, having regard to the nature of the offence and the appellant's record. In respect of the appellant's early plea, however, he discounted the sentence by one half, and sentenced the appellant to three months imprisonment.

[6]      Mr Gilchrist, who appeared for the appellant, submitted that the sheriff erred in imposing a custodial sentence. He submitted that in all the circumstances a financial penalty would be appropriate. Although there had been a breach of trust, the sum stolen was relatively small. The appellant's analogous previous convictions took place eighteen and twenty years ago. The appellant was now in employment with a radio taxi firm. He earned £107 per week. He could pay a fine at the rate of £15 per week. He had put his solicitors in funds to make restitution of the sum stolen. Payment had not yet been effected only because there was confusion as to the proper destination of the reimbursement in the light of the take-over of Safeways.

[7]      Before we deal with the principal submission for the appellant, we feel obliged to comment on the sheriff's approach to the discount to be allowed for the appellant's early plea of guilty. We are in agreement with the sheriff that a discount ought to be applied to the sentence on that account. In our opinion, however, the 50% discount which the sheriff allowed was excessive. In Du Plooy v H. M. Advocate 2003 SCCR 640, 2003 SLT 1237, at paragraph [26] the Lord Justice General, delivering the opinion of the court, said:

"Since the significance of the timing and circumstances of the tendering of the plea of guilty, the practical consequences of the plea and any related matters will vary, it would not be appropriate for there to be a fixed or 'normal' discount. What should be the discount in the individual case is plainly a matter for the discretion of the sentencer. For the same reason we do not consider it appropriate to indicate a maximum or a minimum discount. However, we consider that the discount should normally not exceed a third of the sentence which would otherwise have been imposed. In any particular case, the discount may well be less than that proportion, or none at all. There may, on the other hand, be exceptional circumstances which would justify a greater discount."

Although in this case the appellant's plea was tendered at the earliest opportunity, there were no exceptional circumstances which would, in our opinion, justify a discount in excess of one third. The sheriff does not suggest that there were any such exceptional circumstances. In the absence of such circumstances, the discount of 50% allowed by the sheriff was, in our opinion, beyond the proper scope of his discretion.

[8]      In our opinion, the sheriff erred in regarding this as a case in which no sentence other than a custodial one was appropriate. Although a breach of trust was involved, the amount stolen was small. Although it has been delayed, restitution is to be made. The appellant's previous convictions for offences of dishonesty took place eighteen or more years ago. The appellant is in employment, and in a position to pay a financial penalty. In these circumstances an appropriate alternative to custody is available. We do not consider it necessary to obtain reports, because we think it appropriate to substitute for the custodial sentence a fine.

[9]      Having regard to the nature of the offence, the fact that restitution is to be made, and the appellant's means, we consider that the appropriate penalty is a fine of £200. But for the early plea, we would have set the amount of the fine at £300. We are thus applying a discount of one third. The fine will be paid by instalments of £15 per week. We shall therefore allow the appeal, quash the sentence of three months imprisonment, and substitute a fine of £200, payable in instalments of £15 per week.

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