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Appeal Against Abusive Act Refused On Appeal

PF v Sean Murphy

Mr Sean Murphy was ordered to complete a community payback order as a disposal after threatening to share intimate images of his former partner. He appealed the decision but this was rejected by the Sheriff Appeal Court. The appeal sheriffs did not agree with the appellant’s claim that the threat to disclose the photographs was not an “abusive” act.

They agreed with the original sheriff that ordered the CPO and stated that this was warranted. The appellant pled guilty at the Trial diet to a contravention of section 2 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The CPO imposed ordered Mr Murphy to complete 135 hours unpaid work which was reduced from 150 for his guilty plea. A 12 month supervision element and a non harassment order was also imposed.

The appellant’s argument in lodging the appeal was that this sentence was excessive. The Trial court however observed that the maximum sentence for such conduct was 12 months imprisonment on summary complaint. The sentencing sheriff considered that this conduct would be dealt by this court severely as this was done to deliberately cause distress to the complainer.

The Appeal court heard that the appellant made this threat under the influence of alcohol but it caused immediate distress to the complainer. The appeal court therefore had to consider if this threat warranted the level of penalty or if the sheriff had erred. Sheriff Principal Murray said: “The appellant’s action was clearly an unwelcome and uninvited threat to publish this photograph to the complainer’s children.

Parliament has specifically legislated for such an offence. In all the circumstances we have no doubt that a CPO is warranted and are satisfied that the 135 hour CPO which the sheriff imposed with a supervision element falls within the upper end of the range open to him.” Therefore, the appeal was dismissed.

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