APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Smith Lord Philip	[2013] HCJAC 90 XJ393/13   OPINION OF THE COURT   delivered by LADY SMITH   in   APPEAL AGAINST SENTENCE   by   GLORIA PATERSON   Appellant;   against   PROCURATOR FISCAL, ELGIN   Respondent:   _____________

 

Appellant: J Keenan; Capital Defence, Edinburgh

Respondent: L Rodger, AD ad hoc; Crown Agent

 

25 June 2013

[1] On 4 April 2013, Gloria Paterson pled guilty at Elgin Sheriff Court to a charge of having contravened section 38 of the Criminal Justice and Licensing (Scotland) Act 2010 by, on 9 March 2013, having behaved in a threatening or abusive manner likely to cause fear and alarm by uttering threats to harm herself and others with knives.

[2] The circumstances of that offence were that, when police were called to the appellant's address in the early hours of the morning, she was found there in an extremely intoxicated condition in possession of seven knives (some with six or seven inch blades) and a meat skewer, saying that she was going to do someone harm. The appellant had a long standing alcohol problem. She had, the previous day, fallen out with her daughter and that had precipitated her excessive consumption of alcohol that evening.

[3] The sheriff, who was a visiting sheriff, sentenced the appellant by imposing a community payback order with conditions first, that she perform 120 hours of unpaid work within a period of one year and secondly, that she refrain from consuming alcohol for a period of two years and submit to a breath test if required to do so by her supervising officer, or by a police officer. The appellant confirmed to the sheriff that she understood those conditions and that she was willing to comply with them. She duly signed the order. No submission was made to the sheriff by the solicitor who represented her that such conditions were not realistic in her case or that there were any personal reasons why the appellant would not be able to comply with them. The sheriff advises, in the report he prepared for this court, that conditions requiring that the offender abstain from consuming alcohol "are regularly imposed in courts in which I sit with considerable degree of success for people with alcohol problems".

[4] Further, before imposing that sentence, the sheriff considered the terms of the criminal justice social work report. In that report, the author advised that, whilst the appellant has convictions dating back to 2004 (with an analogous offence in January 2013) and she accepted that her offending behaviour was underpinned by misuse of alcohol, the gaps in her offending history related to periods when she had been able to control her alcohol misuse. Then, the author advised that, so far as her alcohol use was concerned, by the time of that report, she had cut down compared to her previous consumption, although she stated to the author that alcohol consumption was still an issue for her in terms of her day to day life. Then the report advised that the appellant would be considered suitable for a community based disposal and turning to the possibility of an unpaid work requirement stated;

"Whilst Ms Paterson states she would comply with such an order, it is a concern that at this stage her use of alcohol, along with her health may impact on her ability to complete hours. However, should the court wish to impose a period of unpaid work, Ms Paterson would be in a position to undertake light duties".

 

That is, whilst the appellant, in terms of the report, was identified as having a problem with alcohol, she had been able to abstain for periods in the past. Further, it was said that the supervision element in any community disposal would include a referral to an appropriate addiction service. Then, whilst the appellant's ability to perform unpaid work may have been compromised by her use of alcohol and her general state of health, the author of the report considered that she would be able to perform light duties.

[5] In the written appeal, it was submitted that the imposition of 120 hours unpaid work and of a conduct requirement whereby the appellant was required not to consume alcohol for two years and to provide breath samples on request, were both excessive and impracticable in all the circumstances of the case. It was said that the appellant, as a 57 year old woman with a long standing alcohol problem, would simply not be able to comply with those conditions. Further, it was suggested that it was clear from the terms of the criminal justice social work report that its author considered that the requirements of unpaid work and immediate abstention from alcohol were not realistic. It was also suggested that the sentence imposed was at odds with the normal practice of the resident sheriff who refrained from imposing what she considered to be excessive or unrealistic conditions that may set the offender up to fail. It was also said that the author of the social work report was dismayed at the sentence.

[6] Before us today, Mr Keenan submitted that whilst the community payback order was an entirely appropriate disposal, the conditions that the appellant carry out unpaid work and abstain from alcohol were not appropriate. So far as the alcohol abstention condition was concerned it was, it was submitted, simply impracticable. Echoing perhaps what was said in the written argument, Mr Keenan submitted that that would just set her up to fail. The notion that she could be expected to stop immediately was not realistic. He did however accept that she appeared previously to have managed to abstain and no doubt that partly explained why the author of the report had made the suggestions that she did. Mr Keenan also accepted that, by the time of the social enquiry report, it did seem that the appellant had cut back on her drinking. If she did not, however, take steps to address her problem, she might be held to be in breach of the community payback order and that would be undesirable. It was unreasonable to expect that she could cease all alcohol use. The acceptance by her of the conditions of the order did not bar any subsequent appeal and if she had refused the conditions then she would possibly have been looking at the alternative of a custodial sentence. So far as the unpaid work requirement was concerned, the author of the report had, he submitted, had reservations about that, although he accepted there was less force in the argument regarding that part of the sentence. Looking at the disposal overall, where the appellant was being made subject in any event to two years supervision, the unpaid work requirement was excessive. There should not have been any unpaid work requirement, but if it was appropriate, then 120 hours was excessive.

[7] We turn to our decision in this appeal. The decision as to the sentence in an individual case is for the sentencing sheriff to make according to what, in his judgement, appears to be competent and appropriate in all the circumstances of that case. The practical approach of another sheriff is not such a circumstance, even if that other sheriff is the resident sheriff. Further, no sheriff is obliged to agree with what is suggested by the author of a criminal justice social work report, albeit that he must clearly have regard to the information contained in such a report and its conclusions. In any event, in this case we do not regard anything written in the criminal justice social work report as being at odds with the sentence that was imposed by the learned sheriff. In particular, we do not accept any submission that it is clear that the author considered that unpaid work and immediate abstention from alcohol would be unrealistic particularly where the appellant had, as noted by that author, been able to address her misuse of alcohol in the past and had, prior to the carrying out of the investigation for the report, reduced her consumption.

[8] There are two other factors of relevance. First, the sentencing sheriff drew on experience that he had had of Community Payback Orders with conditions that offenders are to abstain from alcohol operating successfully elsewhere. Secondly, the appellant confirmed that she understood the conditions and that she undertook to abide by them. Whilst we do not suggest that the acceptance of the conditions of a community payback order necessarily bars an appellant from subsequent appeal, where what is advanced on appeal relates to personal difficulties said to have been in existence but not raised when the conditions were accepted, it may, as here, be considered to ill befit an appellant to say, at appeal stage, that she is not able to abide by them.

[9] In all the circumstances, we are not satisfied that the sentence imposed in this case was inappropriate or excessive. There has, accordingly, been no miscarriage of justice and this appeal is refused.

 

 

 

Debs