Sentence discount includes disposal type: Appeal Court
It is proper for a sentencer to give an offender the benefit of an early plea by discounting a custodial sentence to a non-custodial disposal, and a sentence of the maximum number of hours of unpaid community work need not then be further discounted to reflect the early plea, the Criminal Appeal Court has ruled.
Lord Woodman and Lord Boyd of Duncansby gave the decision in refusing two appeals raising similar points, brought by Robert McDonald and Euan Milligan.
McDonald pleaded guilty to causing death by careless driving, having hit from behind the car of a 28 year old mother of a young child who had slowed due to a hazard, propelling her into the path of an oncoming vehicle. He had been on a hands free phone call at the time. A remorseful first offender, he was given an unpaid work requirement of 300 hours, the sheriff considering the alternative to custody could be imposed in this case.
Milligan was convicted of four charges of intercourse with a complainer then aged 14, when he was 17, having gone to trial accused of rape. He had offered to plead to these offences. He was sentenced to a community payback order with two years' supervision and an unpaid work requirement of 300 hours.
For the appellants it was argued that the imposition of a community payback order was an alternative to custody, not a discount. While the extent of the discount was a matter for the court, there should always be some benefit from an early plea.
Delivering the opinion of the court, Lord Boyd of Duncansby said it was clear from s 196 of the Criminal Procedure (Scotland) Act 1995 that it was not only the length of any sentence, or order for unpaid work, but also the mode of disposal, that might be the subject of discount. That would most often arise when a sentencer was considering whether to impose a custodial sentence or an alternative disposal. The question of discount was a discretionary decision and it was only in exceptional circumstances that an appeal court would interfere.
He continued: "There is accordingly 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 both cases careful consideration had been given to the appropriate disposal, the appellant had been afforded the benefit of the early plea and the decision could be described as finely balanced. Cogent reasons had been given and there was no warrant to interfere with the exercise of discretion.