Absolute discharge for thief with previous convictions for theft was ‘unduly lenient’

A sheriff’s decision to grant an absolute discharge to a woman found guilty of the theft of £200 worth of fencing was “unduly lenient”, the Sheriff Appeal Court has ruled.

Three appeal sheriffs quashed the sheriff’s decision and convicted the respondent of the charge of theft following an appeal by the Crown, after ruling that the sheriff placed “too much weight” on the respondent’s personal circumstances.

Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Ian Abercrombie QC and Appeal Sheriff Sean Murphy QC, heard that the the respondent Eleanor McTaggart originally faced a complaint of embezzlement of goods and money worth a total of more than £1,600, but was found guilty of theft in the sum of £207.86, being the value of fencing delivered to and erected at her home address.

The offence was committed while she was employed by the complainers, a building material supply company, as a credit controller.

The sheriff described the breach of trust as a “lack of a duty of care” to the complainers, but decided to discharge her absolutely, which meant that no penalty was imposed and no conviction was recorded.

But the Crown appealed, arguing that the sentence imposed by the sheriff was “unduly lenient” in that it was a disposal which fell “outside the range of sentences” that the sheriff could reasonably have considered appropriate.

The appeal sheriffs agreed that the disposal was unduly lenient, having observed that the sheriff placed “undue weight” on the consequences of the conviction on the respondent, who had three previous convictions for theft.

Delivering the opinion of the court, Sheriff Principal Abercrombie said: “While weight is always to be given to the trial judge view, especially when he or she has had the advantage of seeing and hearing all the evidence, we are satisfied that in this case, an absolute discharge was well outwith that range.

“The breach of trust involved cannot, in our view, be categorised as the sheriff has done as a ‘lack of a duty of care’ to the complainers. 

“The sheriff appears to have been unduly swayed in reaching this view by the fact that the respondent originally faced a complaint of embezzlement of goods and money to a total value of £1,621. 

“The fact that she has been found guilty of a lesser charge and one reduced in value, should not have led him to close his mind to the seriousness of the offence.”

Furthermore, the sheriff placed undue weight on the respondent’s personal circumstances. 

The sheriff principal continued: “While the consequences of a conviction may well be serious for the respondent in terms of both her current employment and future employment prospects, the sheriff has placed too much weight on these factors, particularly bearing in mind the respondent’s previous convictions for theft.”

The court noted that in 2001 she was convicted of three charges of theft and sentenced to 80 hours’ community service, as a direct alternative to imprisonment.

The respondent also had a conviction for driving without a licence and without insurance in 2002.

The authorities under reference to section 246(3) of the Criminal Procedure (Scotland) Act 1995 make it clear that there require to be exceptional circumstances before a court may order absolute discharge.

But there were “no exceptional circumstances” justifying the sheriff imposing the disposal in this case.

Sheriff Principal Abercrombie concluded: “We will find that the sheriff has erred in deciding that it was inexpedient to inflict punishment without proceeding to conviction that being an error having regard to (a) the circumstances, including the nature of the offence being one of theft from employers and (b) the character of the offender including analogous previous convictions.

“We quash the decision of the sheriff to make an absolute discharge and convict the respondent of the charge of theft.”

The court imposed a level 1 community payback order with a requirement to carry out 80 hours of unpaid work within six months.