SENTENCING STATEMENTS

 

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HMA v Christopher O'Malley

 

Jan 29, 2021

At Dumbarton Sheriff Court today, Sheriff William Gallacher sentencted Christopher O'Malley to a Community Payback Order after the offender pleaded guilty to an offence in terms of the Health and Safety at Work Act.

 

On sentencing, the Sheriff made the following statement in court:

“Christopher O’Malley you have pleaded guilty to an offence in terms of the Health and Safety at Work Act in relation to the obligation on any employee to take reasonable care for the health and safety of other persons affected by their acts or omissions at work. Your acts on 18 December 2017 caused a fire to start in a cupboard in Cameron House Hotel at Loch Lomond. The fire developed from that cupboard and spread to many parts of the building. The building required to be evacuated. Some guests were able to do that with relative ease.  Some found it more difficult including those who had to crawl along a corridor to try to avoid the smoke and fumes and others who had to be rescued by ladder by the Scottish Fire and Rescue Service (SFRS) from a balcony of their room. No doubt, some of those who experienced these traumatic events will be affected by them for a long time to come.

Two others, Simon Midgley and Richard John Dyson, were unable to escape from the effects of the fire and, as a consequence of inhaling smoke and fire gases, tragically lost their lives. Their families will always endure the heartbreak caused by that and their presence here today, and on other occasions, whether directly or remotely demonstrates the continuing loss which they feel and the importance which they attach to these proceedings.

It is clear that it was your action which was the cause of the start of the fire. I accept that you had no intention of causing the fire. I accept that you did not think that your actions could have led to the catastrophe which followed.

I accept that you had not been given adequate training in relation to the procedures which should be taken in relation to disposing of the ash and any other materials which were produced by the open fire. You did however have responsibility for the cleaning and safe disposal of it.

I accept from what I heard that you were in the habit of using outside bins which had been designed and prepared for that purpose. I accept that on this occasion you were already aware that those bins were full and I understand had not been emptied for some weeks prior to this date. I accept that there was no written instruction available for you as to what should be done with the materials. I accept that you were not guided by any manager on the premises as to the appropriate course of action which should follow.

In fact, what you did with the material which you removed from the fire near the main reception for the hotel was to put the ash and embers into a plastic refuse bag which you then placed on the floor of the concierge cupboard on the main entrance floor of the hotel. Some few hours later initial warnings were given that a fire was developing. You and others made vain attempts to address the fire which had already developed in the cupboard and I saw video recording images of what the scene was in that area of the hotel. Tragically what had also happened was that smoke and other gases had spread from there throughout the rest of the hotel resulting in the difficult situation for some residents and the catastrophic outcome so far as related to Mr Midgley and Mr Dyson.

In considering the appropriate penalty which I must impose I have regard to provisions of the statute which indicates that, for the offence to which you have pled guilty, the maximum sentence may be a period of imprisonment not exceeding 2 years. Had it been that you had been given specific instructions and were failing to comply with them, had it been that you had taken a course of action which deliberately disregarded the safety of others, had it been that you had a history of criminal offending and particularly offending showing disregard for others, I would have considered it inevitable that a custodial sentence would be imposed. I have also had regard to the guidelines produced by the English Sentencing Counsel in respect of offences of this type to which I was today referred by your counsel and which assist me in determining the appropriate sentence.

In the event, taking account of your personal circumstances, taking account of your lack of criminal history and all that I have read about you in the social work report and heard on your behalf, including the character reference submitted on your behalf, and considering also that you have accepted your responsibility and pled guilty to this offence at the earliest opportunity that was available to you, I consider that I can avoid the imposition of a custodial sentence. That is of course not any attempt by the court to diminish the tragedy which occurred here nor is it any indication that the court undervalues the distress caused to residents in the hotel and to other staff and the tragic loss of life of Mr Midgley and Mr Dyson or the enduring loss and sorrow experienced by their families and friends. It is rather a recognition that it was not remotely in your contemplation that anything you did on 17 or 18 December would have led to the catastrophe which in fact ensued.

It seems from what I have considered that it would be appropriate for you to be subject to supervision for a period of time and if you agree to this and comply with the instructions of your supervising officer I will make you subject to a Community Payback Order where you will be under supervision for a period of 18 months from today’s date. You will also give back to the community in general. I do not seek in these proceedings to provide any means by which you could give back directly to those who suffered and sustained loss. Rather you will give back to the community and you will carry out 300 hours of unpaid work. I have not reduced that number from the statutory maximum since I consider the discount in sentence which your early plea entitles you is afforded to you by reducing the penalty from a custodial to non-custodial sentence. You will complete those hours within 12 months of today but more importantly you will attend or participate in meetings with your supervisor when required to do so and will attend to complete the hours of unpaid work when directed to do so. This is a clear alternative to a custodial sentence.”

29 January 2021