Two men given 300-hour CPOs for separate offences fail in appeals against level of sentence discount

About this case:

• Citation:
  [2022] HCJAC 34
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Boyd of Duncansby

Robert McDonald and Euan Milligan were separately convicted of offences under the Road Traffic Act 1988 and the Sexual Offences (Scotland) Act 2009. They both sought to have their sentences discounted from the maximum of 300 hours of unpaid work under a Community Payback Order, which had been imposed on them in lieu of a custodial sentence.

The appeal was heard by Lord Woolman and Lord Boyd of Duncansby. Brannigan, advocate, represented both appellants and Goddard QC appeared for the Crown.

Alternative to custody

Mr McDonald, the first appellant, pled guilty to causing the death of a 28-year-old woman after his car struck the back of her car and propelled it into the path of a van travelling in the opposite direction. At the point of collision, he had been speaking to his wife on a hands-free phone call and was travelling approximately 20 to 30 miles an hour faster than the deceased.

The sheriff considered that because the first appellant was a first-time offender and expressed genuine remorse, he could impose a non-custodial sentence. However, he considered that a sentence of 300 hours of unpaid work should be imposed as a direct alternative to prison, and had he imposed a custodial sentence his starting point would have been 12 months’ imprisonment to which he would have applied a discount.

Mr Milligan had been tried in the High Court of Justiciary of eight charges under the Sexual Offences (Scotland) Act 2009, including four of rape contrary to section 1 of the Act. In respect of those charges the jury convicted him of a statutory alternative to rape under section 28 of the Act and acquitted him of four other charges. The sentencing judge sentenced him to a CPO with two years’ supervision and an unpaid work requirement of 300 hours.

The second appellant had offered to plead to those offences in the same terms at a preliminary hearing and argued he should have been allowed a discount for the timing of the plea. However, the judge took the view that the CPO was a direct alternative to a custodial sentence, he had considered long and hard whether a community disposal was appropriate, and the full number of hours would adequately meet the punitive requirements of his sentence.

Counsel for both appellants submitted that the imposition of a CPO as an alternative to custody ought to still result in at least a token level of discount. Where the threshold for custody was met, but the court determined that an alternative was available, the appropriate course was to impose the CPO and provide a suitable discount in, for example, the number of hours’ work from the headline figure.

Reflect the gravity

Lord Boyd of Duncansby, delivering the opinion of the court, observed: “There is no reason in principle why a sentencer, in the exercise of his or her discretion, should not discount a custodial sentence to a CPO with the maximum number of hours of unpaid work. If the court could not proceed in this manner, then a sentencer might feel compelled to reject the non-custodial option and sentence the accused to a term of imprisonment, suitably discounted. It is clear from the sentencing reports in the present cases that they considered that only the imposition of the maximum number of hours would reflect the gravity of the offences.”

Addressing the first appellant’s case individually, he said: “The sheriff rejected the submission that the level of carelessness displayed by the appellant was not of the highest. Application of the English sentencing of Offences of Causing Death by Driving might suggest that the sentence was generous to the appellant. The sheriff explains however that for a number of reasons including the fact that he pleaded guilty by section 76 procedure and that there was available an alternative to custody he could impose a community payback order with an unpaid work requirement in order to reflect the seriousness of the offence.”

He continued: “The sheriff explains that one of the factors that persuaded him to impose a CPO as a direct alternative to imprisonment was the fact of the early plea. The appellant had the benefit of the discount from a custodial to non-custodial sentence. Had a discount been applied to the number of unpaid hours the sheriff would, in effect, have given the appellant the benefit of a discount twice – once for the mode of disposal and again for the number of unpaid hours.”

Turning to the second appellant’s case, Lord Boyd said: “Despite the restricted terms of the verdict the appellant was convicted of serious sexual offences. He engaged in penetrative sexual activity with a 14-year-old, over 3 years his junior, on numerous occasions seemingly untroubled by the fact that to do so was on each occasion illegal. The sentencing judge acknowledges that others may have taken a different view, but he was persuaded that the appellant should be afforded the opportunity to work through a CPO. He made it clear that only the imposition of the maximum number of 300 hours would adequately meet the punitive requirements of the appellant’s sentence.”

He concluded, refusing both appeals: “It is clear that both the sheriff and the sentencing judge gave careful consideration to the question of the appropriate disposal for each appellant. In both cases the appellant was afforded the benefit of the early plea in discounting the sentence from a custodial sentence to a non-custodial disposal. In both cases the decision can be described as finely balanced. Both sentencers have given cogent reasons. There is no warrant to interfere with the exercise of their discretion.”