APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Drummond Young	[2012] HCJAC 71 XJ224/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by CHRISTOPHER HAZLETT Appellant; against PROCURATOR FISCAL, PERTH Respondent: _____________

Appellant: M C MacKenzie; Drummond Miller (for A.C. Miller & MacKay, Perth)

Respondent: Pike, AD; Crown Agent

8 May 2012

[1] On 22 February 2012 at Perth Sheriff Court, the appellant, who is aged 47, pled guilty to driving a heavy goods vehicle with 90mgs of alcohol per 100mls of breath, contrary to Section 5 of the Road Traffic Act 1988. He was stopped on the A9 Perth to Stirling road at about 11am, driving a Scania articulated lorry with a heavy load of paper on its way to Coatbridge. That vehicle was speed restricted to 56mph and it is recorded that he was driving under that speed when stopped by the police.

[2] The Social Enquiry Report revealed that the appellant lived with his partner and his teenage son. The appellant has no previous convictions and had been driving a heavy goods vehicle for 26 years. He had two fixed penalties, first, in 2003 for speeding and, secondly, in 2009 for use of a mobile phone when driving. He has, of course, lost his job as a result of this offence. Since then he has taken steps to address what appears to be an alcohol problem by attending an organisation called Signpost based in Alloa.

[3] Not surprisingly, the sheriff took a serious view of this offence. He regarded custody as the only appropriate sentence.

[4] The court agrees entirely that custody was one appropriate sentence which had to be considered for an offence of this nature. On the other hand, it required to be the only appropriate sentence available and the court is not satisfied that that is the case given the personal consequences to the appellant, even when balanced against the serious nature of the offence. The court has had regard to McCrory v Walkinshaw 1999 GWD 4-222 where a sentence of imprisonment was quashed on a 59 year old first offender driving an HGV on the A75 with double the alcohol limit; although it also notes that judicial sanctions for this type of offence may have undergone a general increase since then.

[5] In all the circumstances, however, the court is prepared to quash the sentence of imprisonment and impose instead a community payback order. This will involve a requirement for unpaid work in the community at level 2 of 240 hours, to be completed within 6 months. That amount is discounted for the early plea from 300 hours. The court considers that, in addition, there should be a supervision requirement of 12 months and that that will involve the appellant undergoing such alcohol treatment as his supervising officer requires him to do. In relation to the disqualification, the court agrees that a 3 year qualification was entirely reasonable, but it will apply a discount to that also to reduce it to one of 2 years and 6 months.

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