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Custodial Sentence Reduced on Appeal

PF v William Kenneth Russell

Mr Russell pled guilty to assaulting his wife, subject to a bail aggravation and also to a domestic abuse aggravation. He has successfully appealed to lower his custodial sentence. In July of 2017 he was sentenced to complete a Community Payback Order for pleading guilty to the offence. However, by the end of the year, the CPO had been breached and the appellant admitted this and therefore the sheriff revoked the CPO and sentenced him to 5 months and 15 days imprisonment. The sheriff made it clear that this was due to the appellant’s previous record for violent offences but stated that one month of this sentence was for breaching the CPO. The appellant appealed against this sentence stating that the sheriff had erred when coming to this conclusion and the sheriff appeal court agreed.

The appeal court stated that this approach is ‘’fundamentally flawed.’’ The 1995 act allows the court to impose a CPO as an alternative to prison, or as well as a fine. Where the CPO was made under 227A(1), the court is entitled to impose a sentence of imprisonment, but not to separately punish for the breach. The punishment for the breach is in the community payback order being revoked and a custodial sentence being imposed. It was clear to the sheriff appeal court that it was incompetent for the original sheriff to sentence the appellant for breaching his CPO in addition to the sentence of imprisonment imposed for the offence. Therefore, the sentence was quashed by the appeal court and the sentence reduced 4 months 15 days.

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