Robert McDonald and Euan Milligan were convicted separately. They were both sentenced to a Community Payback Order which incorporated the maximum of 300 hours of unpaid work. This was imposed by the court as an alternative to custody. Both men appealed the sentence. 

Mr McDonald pled guilty to causing the death of a 28-year-old woman. His car struck the back of her car causing it to propel into the path of a van. He had been speaking to his wife on a hands-free phone call at the time of the collision. He was also travelling around 20 to 30 miles an hour faster than the deceased was. 

In sentencing him the sheriff took into consideration the fact that this was the appellant’s first offence and that he had expressed genuine remorse. As a direct alternative to custody the sheriff imposed a sentence of 300 hours of unpaid work. He explained that had he imposed a custodial sentence the starting point would have been 12 months’ imprisonment to which he would have discounted. 

The second appellant, Mr Milligan, went to trial at the High Court of Justiciary on eight charges under the Sexual Offences (Scotland) Act. The charges involved four charges of rape. In relation to those charges the jury convicted him of a statutory alternative under section 28 and acquitted him of the four rape charges. In sentencing him the judge imposed a CPO with two years’ supervision and unpaid work of 300 hours. 

The second appellant had offered to plead to those offences at a preliminary hearing, but this was rejected by the Crown. As a result, it was argued that he should have benefitted from a discount for the timing of the plea. However, the sentencing judge took the view that the CPO was a direct alternative to custody. He stated that the full number of hours would meet the punitive requirements of the sentence. 

Counsel for the appellants submitted that the CPOs imposed should have attracted some level of discount. 

Lord Boyd of Duncansby in delivering the opinion of the court said: “There is no reason in principle why a sentencer, in the exercise of his or her discretion, should not discount a custodial sentence to a CPO with the maximum number of hours of unpaid work. If the court could not proceed in this manner, then a sentencer might feel compelled to reject the non-custodial option and sentence the accused to a term of imprisonment, suitably discounted. It is clear from the sentencing reports in the present cases that they considered that only the imposition of the maximum number of hours would reflect the gravity of the offences.”

In refused both appeals, he concluded: “It is clear that both the sheriff and the sentencing judge gave careful consideration to the question of the appropriate disposal for each appellant. In both cases the appellant was afforded the benefit of the early plea in discounting the sentence from a custodial sentence to a non-custodial disposal. In both cases the decision can be described as finely balanced. Both sentencers have given cogent reasons. There is no warrant to interfere with the exercise of their discretion.”