HMA v William Russell 2018
William Russell pled guilty in 2017 to a charge of assaulting his wife, subject to a bail aggravation and also to a domestic abuse aggravation. He was sentenced to five-and-a-half months’ imprisonment for assaulting his wife with one month attributed to a breach of a Community Payback Order. However the appeal judges concluded that this was flawed and he had had his sentence reduced.
It was decided that this approached taken by the first instance sheriff was “incompetent” and this was quashed and replaced with a sentence of four-and-a-half months. The part where the sheriff has erred was it was incompetent for him to sentence the appellant for breaching the CPO in addition to sentencing him for the domestic abuse offence itself. The appeal sheriffs commented how this was commonly misunderstood. The original charge was in July 2017 however he breached his CPO which was an alternate to prison therefore in December the sentence was changed by the sheriff to a term in prison.
The sheriff stated in his report to the appeal court that the sentence which he intended to impose was six months discounted to four-and-a-half for the guilty plea. However he also sentenced Mr Russell to a consecutive sentence of one month’s imprisonment for the breach of the CPO. Stating that this was flawed Sheriff Braid said:
“… (the 1995 act) cannot proceed under both provisions.
Where the CPO was made under 227A(1), the court by definition is entitled to impose a sentence of imprisonment, since the order was imposed as an alternative to imprisonment. The provision makes it clear that any such sentence is being imposed for the offence, as is evident from the words used: ‘deal with the offender…as it could have dealt with the offender had the order not been imposed’.