Ex-naval officer wins appeal against custodial sentence for assault

The Criminal Appeal Court quashed the custodial sentence imposed and substituted a one-year community payback order after ruling that the sheriff should have given more weight to certain mitigatory factors.

Lady Paton and Lady Clark of Calton heard that the appellant Scott Goldie had already spent some months in custody following his conviction.

On behalf of the appellant it was argued that a custodial sentence was inappropriate having regard to a number of factors.

It was pointed out that the appellant only had a “minor record” of previous convictions, which meant he had never previously served a sentence of imprisonment.

The appeal court also had sight of a positive character reference that had not been placed before the sheriff at sentencing, which detailed the appellant’s successful 20-year career in the Navy.

It was also submitted that section 204 of the Criminal Procedure (Scotland) Act 1995 applied to the circumstances of the case, and that the sheriff should not have concluded that there was “no appropriate disposal other than custody” when sentencing the appellant.

Allowing the appeal, the judges were persuaded that certain “mitigating circumstances” should have been given “greater weight”.

Delivering the opinion of the court, Lady Paton said: “In particular, at the time of sentencing, the appellant had a minor record consisting of a totting-up driving disqualification (2004) and a breach of the peace (2014). As a result, he had never before served a prison sentence.

“Secondly, he had 20 years public service in the Navy, holding a number of responsible positions. In a character reference, he is described as ‘consistently providing command with a high level of successes during both the training and operational phases of his employment’.

“That reference goes on to give a generally positive assessment of the appellant. The assessment, coming as it did from the Navy, is one to which we give considerable weight.

“Another matter we take into account is that, as a first offender with the background we have just described, the appellant qualifies for the protection afforded by section 204 of the Criminal Procedure (Scotland) Act 1995. The sentencing sheriff had to be of the view that there was no appropriate disposal other than custody.

“We consider that, viewing the whole circumstances of the appellant’s case, including his previous pro-social-work and family-orientated life, the fact that he still has the support of his family (both now, and at the time of sentencing) and the fact that he would be likely to cooperate with any community disposal, a non-custodial alternative was available, despite the admitted gravity of the offences. That non-custodial alternative should, in our view, have been selected.

“We also understand that he would be willing to participate in community based work. In all the circumstances, we shall quash the custodial sentence and substitute therefor a one year community payback order with certain conditions.”

The first condition was unpaid work of 100 hours to be completed within the year, and the second was an undertaking to participate in such anger management and dispute resolution program or programs as ordered by his supervising officer.