Mr Norman Bowman, aged 63, appealed against the community payback order imposed on him. Mr Bowman was convicted of 4 charges, involving verbal partner abuse and breach of bail. 

It was the appellant’s argument that the sentencing sheriff did not properly consider the time that he spent in custody prior to the conviction.

Counsel for the appellant presented the argument that following amendments to the indictment, the period already spent in custody was more than sufficient. As such, they suggested that any further sentence was excessive. 

In response, Lord Matthews stated “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.”

“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.”

It was held that the sentence issued by the initial sheriff was not ‘incompetent or excessive.’ This was due to the seriousness of the indictment and the domestic violence involved.