William Kenneth Fraser Russell v. Procurator Fiscal, Falkirk [2018] SAC (Crim) 7

Appeal against sentence:- On 20 July 2017 the appellant, having previously pled guilty to a charge of assaulting his wife whilst on bail, was made the subject of a Community Payback Order, in terms of section 227A(1) of the Criminal Procedure (Scotland) Act 1995, as a direct alternative to imprisonment. The appellant thereafter breached the CPO and admitted that breach. On 15 December 2017 the sheriff revoked the order and of new sentenced the appellant to 5 months 15 days imprisonment. It was recorded on the court minutes that one month of the sentence was attributed to the breach of the Community Payback Order. In his report to the court the sheriff stated that the sentence he intended to impose for the index offence was one of 6 months discounted to four and a half for the guilty plea but that he also imposed a consecutive sentence of one month’s imprisonment for the breach of the CPO. The appellant appealed against the sentence that was imposed on the basis that the imposition of a consecutive month’s imprisonment for the breach was incompetent. Here the court allowed the appeal. In terms of section 227A(1) of the 1995 Act the court is allowed to impose a community payback order instead of imposing a sentence of imprisonment. Section 227A(4) of the 1995 Act allows the court to impose a CPO instead of, or as well as, a fine. If an accused breaches a CPO it is necessary for the court to have regard to whether the CPO was imposed under section 227A(1) of section 227A(4). If the court decides not to vary the order and revokes the order then it must proceed under either subsection 7(b), for orders made under section 227A(1), or under subsection 7(c), for orders made under section 227A(4). The court here noted that by proceeding under both provisions the sheriff had erred as the CPO was imposed under 227A(1) and the court is entitled to impose a sentence of imprisonment for the offence since the order was imposed as an alternative to imprisonment and there is no power to separately punish an accused for the breach. In relation to a CPO imposed under section 227A(4) the court cannot sentence an accused to imprisonment for the offence since, by definition, it initially only merited a fine and an accused, in those circumstances, is being punished for the breach itself and is why the period is limited to 3 months. Here the court quashed the sentence of 5 months 15 days imprisonment and replaced it with a period of 4 months 15 days imprisonment.