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Excessive Community Payback Order Appeal Refused

PF v John McLellan 2019

Mr McLellan has had his appeal against sentence refused at the Sheriff appeal Court. Mr McLellan appealed to the Sheriff Appeal Court stating that that compensation element of his Community Payback Order was excessive. The basis for the argument was that the appellant stated he should have been given a discount of the £6,000 figure imposed for his guilty plea. Mr McLellan pled guilty to an assault and two breaches of the peace charges.

The appellants unpaid work element of the CPO was reduced from 200 hours to 150 hours as a result of the appellant pleading at the intermediate diet, the usual 25 percent discount. However, the Appeal Court did not agree with the appellant’s argument and concluded that a compensation requirement of a CPO cannot be subject to a discount.

The reasoning given by the Appeal Court was that complainers would feel “aggrieved.” Sheriff Principal Stephen stated in conclusion: “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 was therefore refused.

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