Pensioner jailed for embezzling church funds wins appeal for non-custodial sentence

A pensioner who was jailed for 18 months’ after embezzling more than £70,000 from a church where she acted as a treasurer has successfully appealed to have her custodial sentence quashed.

 

The High Court of Justiciary Appeal Court ruled that there was “no reason” for the sheriff to impose a deterrent sentence, having regard to the age of the appellant and the fact that she was a first offender.

 

 

Lord Malcolm and Lord Turnbull heard that the appellant Janet Farquhar, 70, pled guilty to a charge of embezzlement, committed over a period of eight years, while she was acting as the treasurer of Chalmers Memorial Church in Port Seton. 

 

The sheriff sentenced her to 18 months’ imprisonment, discounted from two years for the early plea of guilty.

 

He considered that there was a need to impose not only an appropriate sentence but one which deterred others because of the gravity of the offence, which included a “gross breach of trust”.

 

The court was told that in 2016 it emerged that the church had fallen behind in the contributions which it owed to the Church of Scotland. 

 

A subsequent enquiry ascertained that between 2008 and 2016 the appellant, who had taken on the role of treasurer in 1999, had issued cheques from the church bank account, payable to herself, totalling nearly £60,000. 

 

A further sum in the region of £12,400 had also been embezzled, this being money which the appellant had failed to bank from the church’s collection sums.

 

By the time the she appeared before the sheriff for sentence she had repaid the sum of £15,000. 

 

 

The appellant, who was her husband’s carer until he died after a period of illness in 2016, was also suffering from significant health difficulties.

 

The sheriff was told that she had fallen into debt having attempted to secure repairs to her house, which was in a poor state of maintenance.

 

It was said that the money which the appellant began taking from the church was used to pay credit card debts and general living expenses. 

 

It was submitted that the appellant, who was a first offender, was “remorseful and embarrassed” over her conduct and she had offered to sell her house to repay the money.

 

In these circumstances, and bearing in mind the protection afforded to the appellant as a first offender in terms of section 204(2) of theCriminal Procedure (Scotland) Act 1995, the solicitor appearing on the appellant’s behalf submitted that the case could be dealt with by a “non-custodial sentence”, as there were a number of cases in which non-custodial sentences had been imposed in relation to cases of theft and fraud involving significant sums of money.

 

But the sheriff decided to impose a custodial sentence for what was a “sustained and calculated course of conduct”.

 

Leave to appeal was granted challenging the imposition of a custodial sentence and, in the alternative, the length of the sentence selected, and In support of the appeal it was argued that while on the face of matters a custodial sentence could be said to have been warranted, certain circumstances existed which entitled the court to interfere.

 

The court was advised that the appellant, who had served a period of around seven weeks in custody before being granted interim liberation, had repaid the entire balance of the outstanding sum embezzled.

 

Allowing the appeal, the court quashed the custodial sentence and imposed a fine of £15,000 to be paid within one year, after ruling that the sheriff was “too hasty” in rejecting the appellant’s case.

 

Delivering the opinion of the court, Lord Turnbull said: “We accept immediately that the offence to which the appellant pled guilty was a serious one. As set against that, the appellant’s personal circumstances, in particular her age, her lengthy period of constructive employment and her medical conditions, constitute powerful mitigating factors.

 

“We also consider that certain errors can be identified in the sheriff’s approach. On the information available there appeared to be no reason for the sheriff to suppose that a deterrent sentence was required. Nor does he explain why he arrived at that conclusion.”

 

The appeal judges observed that while the sum involved in the present case was, on the face of it, more substantial than the sums of £23,000 and £20,000 respectively which were involved in the cases ofDolan v Her Majesty’s Advocate 1986 SCCR 564 and White v Her Majesty’s Advocate 1987 SCCR 73, to which the sheriff’s attention was drawn, an appropriate comparison could not be gained without taking account of the effect of inflation over the years.

 

“To this extent,” the judge continued, “we consider that the sheriff may have been too hasty in dismissing the assistance which might be available from the disposals in those cases.”

 

Lord Turnbull added: “We have also reminded ourselves of the terms of section 204 of theCriminal Procedure (Scotland) Act 1995 which provides, in sub-section (2), that a court shall not pass a sentence of imprisonment on a person of or over 21 years of age who has not previously been sentenced to imprisonment unless the court considers that no other method of dealing with him is appropriate.

 

“The circumstances which now pertain are that the appellant has secured repayment of the entire sum embezzled. That is an important consideration. The appellant also served a period of around seven weeks in custody between the imposition of the sentence and the grant of interim liberation. 

 

“Taking account of the assistance which we consider can be gained from the cases of White and Dolan, and the whole circumstances of the appellant’s case, including the information provided in the criminal justice social work report, her age, her previous lengthy good character and her physical condition, we are not persuaded that the test provided for by section 204(2) has been met.

 

“In these circumstances we shall give effect to the principal submission made on the appellant’s behalf and we shall quash the sentence of imprisonment imposed.”