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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Gash v Procurator Fiscal, Oban [2010] ScotHC HCJAC_132 (23 November 2010) URL: http://www.bailii.org/scot/cases/ScotHC/2010/2010HCJAC132.html Cite as: [2010] HCJAC 132, [2010] ScotHC HCJAC_132 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord CarlowayLady Cosgrove
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XJ1046/10 & 1047/10
OPINION OF THE COURT
delivered by LORD CARLOWAY
in
APPEAL AGAINST SENTENCE
by
MARK GASH
Appellant;
against
PROCURATOR FISCAL, OBAN
Respondent: _____________ |
Appellant: J Keenan, solicitor advocate; Capital Defence (for D M Mackinnon, Oban)
Respondent: Henderson AD; Crown Agent
23 November 2010
On 31 August 2010, at Oban Sheriff Court, the appellant was sentenced to 8 months imprisonment for a contravention of section 5(1)(a) of the Road Traffic Act 1988 committed on 3 January 2010 on Mull, having a count of 85 micrograms. He was sentenced to a further 12 months, 3 months attributable to a bail aggravation, (discounted from 15 months for an early plea) for an identical offence on 27 March 2010 with a count of 115 micrograms. He had pled guilty to the second offence but had been convicted after trial on the first. The periods were ordered to run concurrently.
The appellant is aged 48 and he has an analogous conviction from 2000 when a community service order of 100 hours was imposed. His personal circumstances are that he was employed as a driver of Calor gas. He was accustomed to drinking heavily at weekends, his alcohol difficulties commencing after the tragic death of his brother many years ago. He is separated and lives on his own in Mull.
The Sheriff records that, had he been dealing only with the first of the two offences, he would have considered a community service order appropriate as a direct alternative to custody. The problem was, as the Sheriff saw it, that, having been released on bail, the appellant committed an identical offence a few months later. Under reference to Mann v O'Donnell 2002 GWD 20-695, it was submitted that the selection of custody was excessive as it was not the only appropriate sentence for this offence. It was also argued that the length of the sentences was excessive.
The court is unable to agree with either of these submissions. Having regard to the alcohol levels and to the repeat nature of the offending, against the background of an analogous conviction which had itself attracted a community service order, the court is unable to classify these sentences as either inappropriate or excessive. This appeal must be refused.
fg
