APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Mackay of Drumadoon Sheriff Principal Lockhart	[2010] HCJAC 131 Appeal No: XJ886/10 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in NOTE OF APPEAL by PETER CAIN Appellant; against PROCURATOR FISCAL, PERTH Respondent: _______

Appellant: Brown QC; AC Miller and McKay, Perth

Respondent: McKenna, AD ; Crown Agent

28 October 2010

Introduction

[1] The appellant Peter Cain pled guilty at Perth Sheriff Court on 8 July 2010 to a contravention of section 5(1)(a) of the Road Traffic Act 1988. The charge alleged that on 6 December 2009, on the A9 road near Perth, he had driven with a blood alcohol level of 99 micrograms of alcohol in 100 millilitres of breath, which exceeded the prescribed limit of 35 micrograms of alcohol in 100 millilitres of breath. The appellant first appeared on that charge on 7 December 2009, following his detention the previous day.

[2] On two previous occasions, the appellant had been convicted of contravening section 5(1)(a) of the 1988 Act. On 30 June 2003 he was fined £600 and disqualified from holding a driving licence for a period of 18 months and on 25 July 2005 he was placed on probation for a period of 18 months and disqualified for a period of 5 years.

[3] The present offence was committed late in the evening of 6 December 2009. Police officers received information that the appellant had been seen driving home. He was traced to his home address by police officers. When they arrived the appellant admitted he had been driving his vehicle on the A9. He was under the influence of alcohol and the necessary statutory procedures had been gone through.

[4] When the Sheriff came to impose sentence on 4 August 2010 he imposed a custodial sentence of 175 days imprisonment to run from that date and disqualified the appellant from holding a driving licence for a period of 8 years.

Submissions

[5] The appeal against sentence was directed against the imposition of a period of imprisonment, and its length, and the length of the period of disqualification. In arguing the appeal senior counsel for the appellant acknowledged that the circumstances of the case, when taken with the appellant's previous convictions, warranted the Sheriff considering whether or not a custodial sentence should be imposed. It was submitted, however, that in the particular circumstances of the case, the imposition of a custodial sentence was excessive and inappropriate. That was because the imposition of a community service order would have been an entirely appropriate alternative to custody. The Sheriff was also criticised for having failed to explain in this report to this Court why he had reached the conclusion that only a custodial sentence was appropriate. In the report no reference had been made to the provisions of section 204(2) of the Criminal Procedure (Scotland) Act 1995,

[6] In his submissions as to the personal circumstances of the appellant, senior counsel stressed that the appellant is 46 years of age and has no previous convictions, apart from the two previous contraventions of section 5(1)(a) of the 1988 Act already mentioned. The appellant had not previously served a prison sentence. He is by qualification and employment a psychiatric nurse. In such employment he has provided valuable service to the community.

[7] Senior counsel also referred in some detail to various reports and other documents which had been before the Sheriff. These included the Social Enquiry Report; a medical report dated 12 July 2010 by Dr Brewster, the appellant's general practitioner; a further report dated 12 July 2010 by Dr Peter Rice, a consultant psychiatrist attached to the NHS Tayside Alcohol Problems Service; and a report dated 19 July 2010 from Dr J Spencer, a consultant occupational physician based at Ninewells Hospital, Dundee, who had treated the appellant for alcohol dependency and depression. It was submitted that these reports demonstrated that the appellant had a long history of depression and alcohol dependency, but that since the commission of the present offence the appellant had done all he could conceivably have done to overcome his dependency on alcohol. That was also borne out by other letters of support from relatives and friends of the appellant which had been presented to the Sheriff and which were also before this Court.

[8] It is undoubtedly correct that these various reports and documents indicate that the appellant has in recent months sought to address the problems created by the depression from which he has suffered over many years and his addiction to alcohol. We also recognise that during his submissions, senior counsel founded on a passage in the report of Dr Brewster in which he expressed the view that the imposition of a custodial sentence might end up being counter productive and increase the likelihood of a relapse in the appellant's condition at some later stage, not least by virtue of placing the appellant's career and livelihood at risk. In that regard, we were informed that as far as the appellant's employment with the National Health Service is concerned he has not returned to his employment since the date of the offence. The appellant's employers are seeking to treat the imposition of a prison sentence as a basis for terminating his employment. Proceedings are currently underway in relation to that issue.

[9] During the course of senior counsel's submissions the Court was informed that the appellant had unsuccessfully sought interim liberation before leave to appeal had been granted. Following the grant of leave to appeal, the application for interim liberation had not been renewed. The appellant had remained in custody until he had been released on home curfew, since when he had been tagged and confined to his house between the hours of 7 pm and 7 am. The Court was informed that the appellant's tag was scheduled to be released the day following the hearing of this appeal, 28 October 2010. Whilst the appellant would continue to serve the sentence until the 175 days has run their full course, he had for all practical purposes been released from custody.

[10] In the course of his submissions senior counsel also referred to two cases in support of the proposition that a sheriff imposing a custodial sentence on an accused to whom the provisions of section 204(2) of the 1995 Act apply requires to explain his reasons for doing so and refraining from imposing an available non-custodial sentence, such as community service (Foley v Procurator Fiscal, Tain unreported

1 March 2002 and Mann v Procurator Fiscal, Ayr unreported 14 May 2002).

Discussion

[11] We deal first with the contention that the Sheriff failed to explain why he imposed a prison sentence on the appellant and took the view that no other means of disposal would have been appropriate. In his report to this Court after narrating the facts giving rise to the conviction, the Sheriff sets out in very full detail the terms of the plea in mitigation he received. Understandably, that plea was based, to a very large extent, on the contents of the various documents to which we have referred. The Sheriff records that the solicitor who appeared for the appellant had stressed that the appellant was making efforts to address his addiction to alcohol in anticipation of his returning to employment and his relationships with members of his family improving. It had also been stressed that the appellant was fit to undertake a community service order.

[12] The Sheriff then turned to discuss the circumstances of the case as they had been presented to him. He refers to the fact that this is the appellant's third contravention of the provisions of section 5(1)(a) of the 1988 Act; that on this occasion the appellant was almost three times over the prescribed limit; that when this offence was committed the appellant was driving whilst under the influence of drink on the main trunk road from central Scotland to the north; and that the offence had been committed less than six months after the appellant's licence had been restored to him following his last disqualification and on a date when, but for the restoration of the appellant's licence, he would still have been disqualified from driving. The Sheriff also pointed out that on the appellant's last court appearance for a contravention of section 5(1)(a) of the 1988 Act, the appellant had been made the subject of a probation order. That order had not prevented his further offending. The Sheriff observed, quite correctly, that the sentencing of an accused, such as the appellant, requires the balancing of the circumstances of the accused himself with the wider interests of society. Understandably, he pointed out that the potential for tragic consequences resulting from a person driving whilst over the legal limit is well known. The Sheriff expressed the view that in his opinion the interests of society outweighed those of the appellant in the present case, recognising, as he made clear, that consequences for the appellant of the imposition of a custodial sentence would no doubt be severe. Having regard to the terms of the Sheriff's report, we do not accept that the Sheriff failed to explain the decision he reached, namely that the imposition of a custodial sentence on the appellant was the only appropriate disposal.

[13] The decision to impose a custodial sentence that the Sheriff reached was not only one which was open to him, it was one with which we agree. This was the appellant's third conviction for contravening section 5(1)(a) of the 1988 Act. The blood/alcohol level was a high one. The offence was committed within months of the appellant's licence having been restored to him. Notwithstanding the various factors that were placed before the Sheriff and this Court, it cannot be said that in the circumstances of this case the imposition of a community service order would have been appropriate. Nor are we persuaded that the period of imprisonment imposed was excessive. We accordingly refuse the appeal in so far as it is directed to the imposition of the custodial sentence selected by the Sheriff.

[14] We also refuse the appeal in so far as it relates to the period of disqualification. This is the third occasion the appellant has been disqualified. On the last occasion he was disqualified for 5 years and then, on his own application, had his licence restored after a period of 4 years. Notwithstanding that the appellant re-offended within a period of months. In such circumstances it cannot be said that the imposition of a period of disqualification of 8 years was excessive. For these reasons the appeal was refused.