High Court rules sheriff was right to impose Community Payback Order on elderly man convicted of verbal partner abuse

About this case:

• Citation:
  [2023] HCJAC 46
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Matthews

It was argued by appellant Norman Bowman, aged 63, that the sheriff had failed to ascribe sufficient weight to the time he had spent on remand prior to his conviction. A two-year non harassment order that was also imposed on the appellant was not challenged.

The appeal was heard by Lord Doherty and Lord Matthews. Collins, solicitor advocate, appeared for the appellant and Cameron KC, advocate depute, for the Crown.

Alternative to custody

On 7 July 2023 the appellant was convicted of four charges in the Sheriff Court. Charge 1 related to a course of abusive behaviour over 13 months in which he shouted and swore at the complainer and uttered offensive remarks towards her. The other charges arose from him approaching or contacting the complainer in the first charge contrary to a condition of bail. He was remanded in custody from 14 April 2022 until the date of his conviction.

It was noted that the offences of which the appellant was convicted were far less serious than those on the original indictment, which included averments that he had uttered threats of violence towards the complainer and thrown a mobile phone at her head. The sentencing sheriff imposed a CPO consisting of a supervision requirement of two years and a requirement to undertake the Fergus Programme.

Counsel for the appellant submitted that, in the absence of the matters deleted by the jury from the indictment, the case would not have attracted a custodial sentence in excess of the time he had already spent in custody. The period of remand had been sufficient punishment, and the appellant had learned his lesson. Mention was also made of his significant health issues, which included two heart attacks and blood clots that led to amputation of his left leg below the knee.

It was further submitted that the sheriff had obviously concluded that a further period of custody would be appropriate, since the Criminal Procedure (Scotland) Act 1995 allowed for a CPO to be imposed “instead of” a sentence of imprisonment. Such an order could therefore not be imposed where no such custodial sentence would have imposed.

Almost surreal aspect

Lord Matthews, delivering the opinion of the court, said of the relevant law: “The only criterion for the imposition of a CPO under section 227A(1), leaving aside the specialty set out in section 227(3) and (4), is that the offence be imprisonable. That is a question of law and does not depend on the sentencer’s assessment of the circumstances. That assessment comes into play in determining what, amongst the various disposals available, the appropriate sentence is, following the sentencing process guideline.”

He continued: “It is not the law that one has to start with a sentence of imprisonment and then work all the way down until an appropriate sentence is reached. Furthermore, if a sentence of imprisonment is appropriate then that is the sentence which should be imposed. It is quite illogical to suggest that a sentencer should first consider that a sentence is appropriate and then decide that in fact it is not and should be substituted by a lesser sentence.”

Assessing whether the appellant’s conduct merited further imprisonment, Lord Matthews said: “Given the circumstances, a sentence of imprisonment could well have been imposed, albeit one which would have been backdated. The fact that it was not imposed was favourable to the appellant, because had it been imposed a significant sentence of imprisonment would have been added to his record.”

He went on to add: “There is an almost surreal aspect to the appeal. The CJSWR indicated that the appellant had already completed the Fergus Programme previously but advised that he would like the opportunity to complete further work under its auspices; and at the time of sentencing he consented to the imposition of the CPO.”

Lord Matthews concluded: “Given the risk presented by the appellant as clearly outlined in the report, the duration of the offending in charge 1, the repeated breaches of bail in a domestic context and the appellant’s record, we are quite satisfied that the sheriff’s disposal was an appropriate and well considered response. It cannot be described either as incompetent or excessive.”

The appeal against sentence was therefore refused.