Compensation awards for criminal acts should not be discounted for guilty plea, Sheriff Appeal Court rules

John McLellan, who was given a community payback order (CPO) with a compensation requirement after being convicted of a charge of assault and two statutory breach of the peace charges, claimed that he should have been given a “discount” for pleading guilty.

But the Sheriff Appeal Court refused the appeal after ruling that neither a compensation requirement of a CPO nor a compensation order should be subject to discounting, as victims of crime would feel “aggrieved” and the public confidence in the sentencing process would be undermined.

‘Threatening and abusive behaviour’

Sheriff Principal Mhairi Stephen QC, sitting with Appeal Sheriff Peter Braid and Sheriff Norman McFadyen, heard that the appellant was sentenced at Glasgow Sheriff Court on 19 March 2019 in respect of three offences, all on one summary complaint, committed on 1 February 2018 at an address in Glasgow and also at Glasgow Royal Infirmary.

Charge 1 was that he behaved in a threatening or abusive manner which was likely to cause a reasonable person to suffer fear or alarm for acting in an aggressive manner towards a paramedic acting in the course of his duties by shouting and swearing at him and threatening him with violence, contrary to section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010.

Charge 2 was that he assaulted the paramedic by spitting on him, while charge 3 was another section 38(1) offence, which was to the effect that shouted and swore at two female police officers, directed sexual and sectarian comments towards them, and struggled violently with them.

The summary sheriff imposed a cumulo sentence of a community payback order (CPO) with the following requirements: an offender supervision requirement for a period of two years; a compensation requirement totalling £6,000; and an unpaid work requirement of 150 hours, discounted from 200 hours due to the timing of the plea at the intermediate diet, to be completed within 12 months.

The compensation requirement of £6,000 was made up of a compensation payment be made to the paramedic involved in charges 1 and 2 of £3,000, and compensation of £1,500 to each of the two complainers in charge 3.

However, the appellant’s position in his note of appeal was that the amount of compensation was “excessive”.

‘Discount’

Leave to appeal was granted on the question of discount in relation to the compensation requirement, even though the point was not raised in the note of appeal; the sift appeal sheriff having observed that “there appears to be no decided case law on this point and the position may not be the same in relation to a compensation requirement within a package of CPO measures and a distinct compensation order which would be unlikely to attract discount because it is a compensatory award”.

Thus the issue which the court required to determine was whether the compensation requirement made by the sheriff in imposing a CPO was susceptible to discount and, if so, to the same level of discount as other parts of the sentence, such as the hours of unpaid work which attracted a discount of 25%.

It was argued on behalf of the appellant that a compensation requirement made as part of a community payback order was habile to the application of discount in terms of section 196 of the Criminal Procedure (Scotland) Act 1995.

It was further submitted that a compensation requirement as part of a CPO was distinct from a compensation order, which is governed by section 249 of the 1995 Act.

A CPO was a sentence and therefore fell to be treated as such when the court was interpreting section 196, which was concerned with what the court required to take into account “in determining what sentence to pass on……an offender who has pled guilty to an offence,” including the timing of a guilty plea.

Having initially called before two appeal sheriffs, the appeal was continued to a bench of three appeal sheriffs to consider whether a compensation requirement as part of the CPO should be treated any differently from a compensation order made in terms of section 249 of the 1995 Act and whether, in circumstances where the sentencing court considers it appropriate to apply discount following a plea of guilty, it should apply that discount to any compensation requirement of a CPO.

It was submitted on behalf of the appellant that a compensation order was not a sentence, by virtue of section 250(3) of the 1995 Act, and did not require to be discounted.

However, a CPO was a sentence, and if a discount was appropriate, then all parts of that sentence must be discounted by the same percentage or fraction, it was argued.

‘Public confidence’

Refusing the appeal, the court held that the distinction between a compensation order and a compensation requirement of a CPO was “illusory” and made “no difference” to the question of discount.

Delivering the opinion of the court, Sheriff Principal Stephen said: “Overall, having analysed the provisions governing CPOs and compensation orders we conclude that any differences are more apparent than real and they fall to be treated in the same manner when construing whether they are susceptible to discount.

“In these circumstances we do not consider that it is rational to conclude that section 196(1) ought to apply to any order or requirement which has as its purpose restitution. Compensation is intended to make amends to a victim for financial loss or injury. That is the objective of the sentencing court when requiring an offender make financial recompense.

“In effect, the criminal court is endowed with a mechanism for awarding to the victim of a crime that which he or she could receive in a civil action for damages. It would appear to fly in the face of that, and to contradict the apparent intention of Parliament to extend the opportunities for the court to make a compensation order or requirement, were the court then required to reduce the award to a lesser sum.”

The appeal sheriffs also observed that not all sentences can or ought to be discounted.

The Sheriff Principal added: “If compensation was to be subject to discounting we would have a real concern that victims of crime would quite rightly be aggrieved at the outcome and this would lead victims and therefore the public to lose confidence in the sentencing process and our system of criminal justice. The integrity of restitution would be undermined. The objectives expressed in the policy memorandum would not be met.

“The victim of vandalism would have difficulty understanding why the court’s intention to require an offender to make payment of the glazier’s bill translates into a mere contribution; likewise (perhaps more so) to the receipt by a bereaved relative of only a proportion of the funeral expenses. The risk to public confidence is obvious and real. However, we consider the risk to justice is greater.

“For these reasons we have come to the conclusion that a compensation requirement of a CPO is essentially the same in character and extent as a compensation order and that neither ought to be subject to discounting in terms of section 196(1) of the 1995 Act. Accordingly, we refuse the appeal and affirm the sentence imposed by the summary sheriff in Glasgow.”