McLellan v Procurator Fiscal Glasgow

3 September 2019
[1] The appellant was sentenced at Glasgow Sheriff Court on 19 March 2019 in respect of
three offences, all on one summary complaint, committed on 1 February 2018 at an address
in Glasgow and also at Glasgow Royal Infirmary. These are:-
"(001) on 1st February 2018 at 35 Calvay Crescent, Glasgow you JOHN
JOSEPH MCLELLAN did behave in a threatening or abusive manner which
was likely to cause a reasonable person to suffer fear or alarm in that you did
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act in an aggressive manner towards Alexander Jones, a Paramedic acting in
the course of his employment, c/o the Police Service of Scotland, repeatedly
shout and swear at him and threaten him with violence;
CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland)
Act 2010
(002) on 1st February 2018 at 35 Calvay Crescent you JOHN JOSEPH
MCLELLAN did assault Alexander Jones, a Paramedic acting in the course of
his employment, c/o the Police Service of Scotland and did spit on his body
(003) on 1st February at Glasgow Royal Infirmary, 84 Castle Street, Glasgow
you JOHN JOSEPH MCLELLAN did behave in a threatening or abusive
manner which was likely to cause a reasonable person to suffer fear and alarm
in that you did shout and swear at police officers, direct sexual and sectarian
comments towards them and struggle violently with them;
CONTRARY to Section 38(1) of the Criminal Justice and Licensing (Scotland)
Act 2010 and it will be proved in terms of Section 74 of the Criminal Justice
(Scotland) Act 2003 that the aforesaid offence was aggravated by religious
prejudice."
[2] The summary sheriff imposed a cumulo sentence of a community payback order
(CPO) with the following requirements: an offender supervision requirement for a period of
two years; a compensation requirement totalling £6,000; and an unpaid work requirement of
150 hours, discounted from 200 hours due to the timing of the plea at the intermediate diet,
to be completed within 12 months. The compensation requirement of £6,000 is made up of
compensation of £1,500 to each of the two female police officers who are the complainers in
charge 3. The sheriff also ordered that a compensation payment be made to the paramedic
involved in charges 1 and 2 of £3,000.
[3] In his note of appeal the appellant argues that the amount of compensation is
excessive in all the circumstances of the case. This appeal was granted leave at the first sift
to the extent of considering the question of discount in relation to the compensation
requirement, though a point not raised in the note of appeal. The first sift appeal sheriff
observed that "there appears to be no decided case law on this point and the position may
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not be the same in relation to a compensation requirement within a package of CPO
measures and a distinct compensation order which would be unlikely to attract discount
because it is a compensatory award".
[4] As the question of discount is not raised in the note of appeal the sheriff's reasoning
on this is limited to his postscript at paragraph 22 of his report which is in the following
terms:
"22. Whilst it does not form part of the grounds of appeal, I would take this
opportunity to point out that I did not modify the amount of compensation
for the timing of the plea. This was because I took the view that it was
inappropriate to do so in the case of a compensation order. Whilst it is a
matter for your Lordships, in reflecting on the terms of section 196 of the 1995
Act I can see now that a modification to the sum imposed may have been
appropriate in the circumstances."
[5] The issue which this court now requires to determine is whether the compensation
requirement made by the sheriff in imposing a CPO is susceptible to discount and, if so, to
the same level of discount as other parts of the sentence, such as the hours of unpaid work
which attracted a discount of 25% (although it should be noted that the period of the
supervision requirement was not discounted to any extent, a point to which we shall return).
[6] When this appeal called for a hearing before two appeal sheriffs on 22 May 2019,
Mr Findlater, advocate appeared for the appellant and adopted his written submissions. It
was argued on behalf of the appellant that a compensation requirement made as part of a
community payback order is habile to the application of discount in terms of section 196 of
the Criminal Procedure (Scotland) Act 1995 ("the 1995Act"). In this case the compensation
requirement was imposed as part of a community payback order in terms of sections 227A
and 227H of the 1995 Act. Section 227D provides:
"(1) Where a community payback order is imposed on an offender, the order
is to be taken for all purposes to be a sentence imposed on the offender."
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[7] It was further submitted that a compensation requirement as part of a CPO is distinct
from a compensation order which is governed by section 249 of the 1995 Act. A
compensation order is a sentence only for the purpose of any appeal or review (section
250(3)). Where the court is minded to impose a community payback order and also to order
compensation this has to be effected by way of a compensation requirement in terms of
section 227H. It is not competent for the court to make a compensation order under section
249 where it imposes a CPO under section 227A of the 1995 Act (section 249(2) (ab)). A CPO
is a sentence and therefore falls to be treated as such when the court is interpreting section
196 which is concerned with what the court requires to take into account "in determining
what sentence to pass on……an offender who has pled guilty to an offence." In this case the
appellant pled guilty at the intermediate diet. Accordingly, the court requires to take the
stage in the proceedings at which the offender indicated his intention to plead guilty into
account in passing sentence. It follows that the court should have approached the
compensation requirement in the same or similar manner to the approach taken to the hours
of unpaid work. We were referred to Gemmell v HM Advocate 2012 JC 223 and Wilson v PF
Aberdeen 2019 JC 1.
[8] Having considered the submissions for the appellant we decided that the appeal
raised questions of more general importance and wider application beyond the facts of this
case:- namely, whether a compensation requirement as part of the CPO should be treated
any differently from a compensation order made in terms of section 249 of the 1995 Act and
whether, in circumstances where the sentencing court considers it appropriate to apply
discount following a plea of guilty, it should apply that discount to any compensation
requirement of a CPO. We continued the appeal for a bench of three appeal sheriffs to hear
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the appeal and to decide whether to pronounce an opinion in terms of section 189(7) of the
1995 Act. The respondent was invited to lodge written submissions.
[9] When the appeal called before us for a hearing on 2 July 2019 the appellant was
represented by the Dean of Faculty. He founded his submission on the distinction between
a compensation requirement as part of a CPO and a compensation order. A compensation
order was not a sentence, by virtue of section 250(3) of the 1995 Act, and did not require to
be discounted. However, a CPO was a sentence. Further, if discount was appropriate, then
all parts of that sentence must be discounted by the same percentage or fraction. He relied
upon the case of Gemmell and Others v HMA Advocate 2012 JC 223, the five judge decision
which set out what the sentencer's approach to section 196(1) of the 1995 Act ought to be.
The sentencer should determine the headline sentence and then when considering discount
the utilitarian value of the plea was the sole determining factor. In particular the Dean
referred to paragraphs [37], [53], [55] and [56] of Lord Gill's opinion in Gemmell. The same
considerations as to the utilitarian value apply to the different elements of any sentence. The
object of compensation is of no relevance, as the sole criterion when determining discount is
not the sentencing purpose but the utilitarian value. There were limited exceptions to this
principle, the most notable being an extended sentence, which is not subject to discount,
being imposed for public protection. The case of Wilson (supra) serves to emphasise the
proper construction of section 196(1) where sentencing for a particular offence involves the
imposition of various penalties. Although this is not a road traffic case the dicta in Wilson
apply mutatis mutandis. The Lord Justice General at paragraph [18] concluded that "There
will normally be no rational basis for selecting different rates of discount for different parts".
The court in Wilson specifically rejected the notion that the sentencer can operate a
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discriminating approach in road traffic cases. The Lord Justice General at paragraphs [20]
and [21] states:
"For the reasons given above a “discriminating” approach to discount, in so far as
this is taken to mean the application of different discounts to different parts in the
one sentence is not normally legitimate.
As a generality whether to discount a sentence and at what rate, remain matters for
the discretion of the judge at first instance (Gemmell v HMA, Lord Justice Clerk
(Gill), paragraph [29]). However, discretion is not the equivalent of caprice or whim.
It requires to be exercised in accordance with the recognised principles (ibid para
[32]; Saini v Harrower, Lord Justice Clerk (Dorrian), delivering the Opinion of the
Court, at para [5]). There may be some merit in the idea that sentencers should be
given an overriding discretion to disapply, or reduce the rate of, any discount in
relation to the selection of penalty points for the period of disqualification. This is
based on a notion that the nature of the imposition of points or disqualification from
driving has a different purpose from a fine or imprisonment. The idea was rejected
by all the judges in Gemmell; each agreeing with the application of the same, or
approximately the same, rates of discount for the fines and the penalty points for the
road traffic cases."
Although this appeal does not relate to road traffic offences the authorities of Gemmell and
Wilson taken together scotch the notion of there being a different discount or no discount
depending on the purpose of the sentence imposed. All parts of a sentence should attract
the same discount. This applies equally to the present case where discount was applied to
the unpaid work but not to the compensation requirement. The sheriff erred in not applying
the same discount to the compensation requirement.
[10] The Dean of Faculty did not seek to make any submission as to the nature of
compensation, nor seek to draw any distinction between a pure financial penalty (an
example given was compensation for a broken window) compared with a 'solatium' type
award for injury or distress caused by the offender's actings. The Dean did not suggest that
the sheriff was not entitled to make a compensation requirement; instead the appeal was
directed to discount only. Finally, he did not wish to comment on the observation made by
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the court that the supervision requirement had not been discounted, stating merely that the
non-discounting of the supervision requirement did not form part of his argument.
[11] The advocate depute adopted the written submissions. Two questions of law arise -
firstly whether a sentencing court considering discount for the stage the guilty plea is made
requires to apply discount to a compensation requirement imposed as part of a community
payback order? The second question relates to whether a compensation requirement
imposed as part of a community payback order should be treated differently from a free
standing compensation order.
[12] As to the first question, it was submitted that, as with extended sentences,
compensation requirements and 'free standing' compensation orders are governed by their
own special provisions. They serve a particular purpose distinct from other sentencing
options. A compensation requirement or order is restorative rather than punitive or
deterrent or rehabilitative. As its purpose is to compensate the complainer for a loss, be that
for damage to or loss of property, or intangible in the form of personal injury, alarm and
distress, it is in a unique position in sentencing terms in that it is imposed solely in order to
address a specific loss on the part of the complainer or victim. If it is considered appropriate
to impose either a compensation requirement or order, the sentencing court requires to take
into account the offender's means; however, previous convictions or the lack of previous
convictions would appear to have no bearing on the calculation of compensation, especially
compensation relating to damage or pure financial loss. In that sense compensation differs
from other sentences. The advocate depute referred to Robertson v Lees 1992 SCCR 545 and
Landsborough v McLellan 1997 SCCR 464.
[13] On the second question it was submitted that both a compensation requirement and
a compensation order fell to be regarded in a different light from other elements of a
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sentence which might otherwise be subject to discount. However, although compensation
orders and CPOs incorporating a compensation requirement are governed by different
provisions in the 1995 Act, nevertheless section 227H of the 1995 Act explicitly renders
certain of the provisions relating to compensation orders (in sections 249-253 of the 1995 Act)
applicable to compensation requirements in a community payback order. These include
inter alia the permitted level of compensation (the prescribed sum); subsequent review and
adjustment; the requirement to take account of the offender's means and the effect of any
compensation on damages in the course of civil proceedings. It was submitted that both
community payback orders and compensation orders are treated as sentences
(sections 227D(1) and 250(3)).
[14] The advocate depute proposed that the stage of the plea of guilty should not result in
the discounting of any compensation element imposed by the sentencing court regardless of
whether the court requires compensation to be paid as part of a community payback order
or as a free standing compensation order. Accordingly, we were invited to refuse the
appeal.
Decision
Background facts
[15] The background to these offences is that the appellant was significantly under the
influence of alcohol on 1 February 2018 when police and paramedics were called to an
address in Baillieston, Glasgow due to reports of a male shouting and swearing, kicking
doors and lying on the ground. When police arrived they recognised that the assistance of a
paramedic was required as the appellant was lying on the ground severely intoxicated and
initially thought to be unconscious. When the appellant was being escorted to the
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ambulance he became verbally abusive to the paramedic and both police officers. He was
warned about his conduct but continued to direct abuse at the emergency services personnel
using rather disgusting, hostile and aggressive language. When in the ambulance he spat at
the paramedic and his spittle landed on the complainer's forearm. He was arrested but due
to his severely intoxicated state was taken to Glasgow Royal Infirmary. On arrival there he
was lashing out and resisting attempts to assist him. Within the Accident and Emergency
Department he shouted comments of a vile sexual and sectarian nature towards the female
police officers. The hospital was busy with other patients who were either being assessed or
waiting. After being checked by medical staff he was taken to Aitkenhead Road Police
Station still in an extremely intoxicated and aggressive state. Due to the appellant's dreadful
language and behaviour towards the police officers and paramedic the sheriff was entitled
to take the view that a custodial sentence was merited. An assault by spitting is a disgusting
act designed to demean and humiliate the victim. It is rightly regarded as serious criminal
behaviour when directed at any person but especially those attending to assist. The vile
comments and language used in the Accident and Emergency Department towards the
female police officers, in our opinion, require a particularly vulgar and nasty frame of mind
to think of such language far less utter the words. The appellant has a record including
analogous offending. He was due to begin a well paid job working offshore and would be
earning approximately £3,000 net per month. It is against that background that the sheriff
considered imposing a non-custodial disposal with the associated requirement for financial
compensation to be made to the police officers and paramedic. This was made as part of a
package of measures under the umbrella of a community payback order, which has several
distinct sentencing purposes. The purpose of the supervision requirement is to rehabilitate
the appellant by requiring him to address his offending behaviour, whereas the primary
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purpose of the unpaid work requirement is to punish him in addition to requiring him to
give something back to the community. The purpose of the compensation requirement is to
compensate the complainers.
[16] The issues we have to determine do not, however, relate to the headline sentence
imposed by the sheriff. Instead, the questions of law relate to whether the sentencing court
requires to apply discount to a compensation requirement as part of a community payback
order imposed by the sheriff as a cumulo disposal on the three charges. The second issue is
whether a compensation requirement imposed as part of the CPO is distinct from and
therefore should be treated differently from a compensation order imposed in terms of
section 249 of the 1995 Act. That is often referred to as a 'standalone order' - despite the
terms of section 249(1) which provide for such an order being made instead of or in addition
to dealing with an offender in any other way – but it cannot be imposed along with a CPO,
or when discharging absolutely or deferring sentence (section 249(2)).
Compensation requirements (as part of the CPO) and compensation orders – are they
distinct?
[17] Sections 227A-227ZN of the 1995 Act make provision for CPOs. The court may
impose a CPO on an offender instead of imposing a sentence of imprisonment and, instead
of or as well as, imposing a fine (section 227A(4)). Section 227A(2) defines a community
payback order as an order imposing one or more of the requirements listed from (a) to (i).
The community payback order must include at least one of these requirements. In this case
the CPO imposed the requirements set out in 227A(2)(a) – (c) being:
(a) an offender supervision requirement
(b) a compensation requirement and
(c) an unpaid work or other activity requirement.
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However, the sentencing court has available other requirements as appropriate including a
drug and alcohol treatment requirement; a mental health treatment requirement; a residence
requirement whereby the offender remains at a particular location. These are but some of
the CPO components available to the sentencing court. Before the court may impose a CPO
it must have obtained and, importantly, taken account of a report from the local authority on
the offender and his circumstances, commonly referred to as a criminal justice social work
report. It is not necessary to obtain a report where the only requirement is for a level one
unpaid work order in terms of section 227A (4) or if the order is to be made on a fine
defaulter. The report informs the court not only about the offender and his circumstances
but provides recommendations as to the desirability of supervision and the availability of
rehabilitative measures such as treatment orders together with the suitability of the offender
for punitive orders such as unpaid work. The supervision requirement itself has a
rehabilitative effect and the author of the report will often make a recommendation as to the
required duration of the period of supervision in order to achieve the optimal beneficial
effect of the order, whether or not combined with other requirements. The importance of an
offender supervision requirement is obvious from section 227G. Section 227G(2) requires
the court to impose an offender supervision requirement as part of a CPO firstly, if the
offender is under 18 years of age, or if the court proposes to impose any of the other
requirements in the menu provided in section 227A(2) other than an unpaid work or other
activity requirement. Thus, the only requirement of a CPO which can be imposed without
also imposing a supervision requirement is an unpaid work or other activity requirement.
Therefore, an offender supervision requirement is a necessary accompaniment to a
compensation requirement and in terms of section 227H(4) the offender must complete
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payment of the compensation either within 18 months or within two months of the end of
the supervision requirement whichever comes soonest.
[18] Section 227H(5) sets out further provisions applying to compensation orders which
apply to a compensation requirement as if the references in them to a compensation order
also include a compensation requirement. It appears to us that Parliament, in enacting
section 14 of the Criminal Justice and Licensing (Scotland) Act 2010 ("the 2010 Act), which
inserted sections 227A to 227ZN of the 1995 Act, intended that a compensation requirement
as part of a CPO should have the same or similar effect to a compensation order imposed by
virtue of section 249 of the 1995 Act (the so called standalone order). The 2010 Act also
made certain amendments to the statutory regime for compensation orders (sections 249 to
253 of the 1995 Act). The policy memorandum accompanying the bill states that the policy
objective of the amendments to the legislative provisions surrounding compensation orders
is "to improve the courts' flexibility to award compensation thus helping victims of crime
achieve greater satisfaction". The amendments had the effect of widening the circumstances
in which the court might make compensation orders "by making it more straight forward for
the courts to award financial compensation back to the victims of crime for any personal
injury, loss or damage caused directly or indirectly; or alarm or distress caused directly to
the victim resulting from that offence or any other offence which is taken into consideration
by the court in determining sentence." The particular amendments which widen the scope
of the compensation order are also applied to compensation requirements by virtue of
section 227H(2) and (5). For example, section 251(1A) allows the court to review the
compensation order at any time before it has been fully complied with and gives the court
the power to increase the order if materially new information about the means of the
offender becomes available or the offender's financial circumstances have improved. This
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provision applies equally to a compensation requirement by virtue of section 227H(5)(c).
The 2010 Act inserted new subsections (3A), (3B) and (3C) into section 249 allowing
respectively in certain circumstances a compensation order to be made in cases where a road
accident had been caused by an uninsured driver; where a compensation order is made
following damage to a stolen vehicle or an accident with an uninsured driver.
Compensation may include the cost of the loss of preferential insurance rates.
Section 249(3C) provides that a compensation order may be made in respect of loss suffered
as a result of bereavement and funeral expenses in connection with a person's death except if
it was the result of a road accident. These provisions apply mutatis mutandis to
compensation requirements. Importantly section 227H(2) equiparates ‘the matter’ for which
the offender must make compensation to ‘a relevant person’ in a compensation requirement
with the making of a compensation order under section 249. The meaning or definition of
'relevant matter' and 'relevant person' is common to both.
[19] A CPO is to be taken for all purposes to be a sentence imposed on the offender
(section 227D(1)). On the other hand, a compensation order is only a sentence for the
purpose of any appeal or review (section 250(3)). Counsel for the appellant suggested that
this was an important distinction. However, we do not agree. We likewise accept that a
compensation order made in terms of section 249 of the 1995 Act is an order made by the
court designed to compensate a victim. Nevertheless, in our opinion any such distinction
makes no difference to the question of discount as section 196(1) applies "in determining
what sentence to a pass on or what other disposal or order to make in relation to an
offender"( our emphasis). Thus section 196(1) applies to both a sentence and an order made
in relation an offender. The distinction is illusory. Overall, having analysed the provisions
governing CPOs and compensation orders we conclude that any differences are more
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apparent than real and they fall to be treated in the same manner when construing whether
they are susceptible to discount.
Discount
[20] Section 196(1) of the 1995 Act is in the following terms:-
"(1) In determining what sentence to pass on, or what other disposal or order
to make in relation to, an offender who has pled guilty to an offence, a court
shall take into account –
(a) the stage in the proceedings for the offence at which the offender
indicated his intention to plead guilty, and
(b) the circumstances in which that indication was given."
[21] The court in Gemmell (supra) heard seven conjoined appeals which raised important
questions of principle and practice on sentencing discount. In his opinion the Lord Justice
Clerk (Gill) analysed the development of sentencing discount; interpreted section 196 and
set out principles for sentencing courts to follow. In general terms, whether or not to
discount a sentence or the level of discount to apply remain within the discretion of the
judge at first instance. However, that discretion ought to be exercised in accordance with
recognised principles and therefore the sentencer's discretion is not wholly unfettered. In
Wilson, a case involving sentencing for road traffic offences, the Lord Justice General
confirmed that section 196 applied equally to all elements of a sentence (such as fines,
penalty points and disqualification) and repeated that the court in Gemmell had determined
that the only factor relevant to discount is the utilitarian value of the plea. If discount is to
be applied to a sentence the level of that reduction should be uniform across each element or
component of the sentence, the court observing that the application of these principles
would lead to certainty and predictability (para [21]). Such considerations outweigh other
considerations such as flexibility. The concept of discounting is based on pragmatism rather
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than principle. It is concerned with saving time and cost for the administration of justice,
parties and witnesses. The Lord Justice Clerk (Gill) in Gemmell describes it thus, at para [34]:
"It is not based on any high moral principle relating to the offence, the offender or the
victim. On the contrary, it involves the court's passing a sentence that, in its
considered judgment, is less than offence truly warrants. It is a statutory
encouragement of early pleas."
In Wilson the Lord Justice General (Carloway) referred to the pragmatic nature of
discounting. At paragraph [19] he observes:
"There may be an element of inconsistency in the imposition of sentencing for similar
offences, but that again is the general effect of discounting. It is a pragmatic feature
designed to improve the efficiency of the justice system. It must be applied in a
consistent fashion."
At that juncture in Wilson the court is dealing with the construction of section 196 with
specific reference to sentencing in road traffic cases having concluded at para [18] that the
provision applies to both a fine and other parts of the sentence. As all are penalties they
should be discounted at the same rate:
"Other than in exceptional cases, such as when statutory minimums apply, or a
discount is otherwise impracticable, the rate of discount should be uniform across all
parts of the sentence. Any differential would require to be fully reasoned in the
event of a challenge….there will normally be no rational basis for selecting different
rates of discount for different parts."
Wilson along with Gallagher v Procurator Fiscal Glasgow [2018] HCJAC 51, as “sons of
Gemmell”, in large measure bring the reported decisions on discounting up to date.
[22] The advocate depute contended that the purpose of any compensation requirement
or indeed compensation order is restorative rather than punitive, deterrent or rehabilitative.
The Dean maintained that Gemmell had emphasised that all parts of a sentence fell to be
discounted [paras 53-55]. Lest there be any doubt about that the High Court in Wilson
(supra) restated that principle in unequivocal terms at paras [18] and [19]. In Wilson the
court specifically rejected any discriminatory approach to discount based 'on the notion that
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the nature of the imposition points or disqualification from driving had a different purpose
from a fine or imprisonment' [para 21]. This court therefore, required to follow these
binding authorities.
[23] We do not consider that compensation, however awarded, falls readily into the
categories of sentence considered in either Gemmell or Wilson. The court did not require to
consider whether compensation fell to be discounted. In Landsborough v McGlennan (supra)
the High Court considered the nature and character of a compensation order. It concluded
that it should not be regarded in the same way as a fine when considering the appropriate
repayment period, the Lord Justice General (Rodger) observing:- "What a compensation
order is designed to do is to make restitution to the person who has suffered". Landsborough
affirms not only the distinction between a fine as a penalty and compensation as restitution
but also the priority to be given to compensation and its payment. The primacy to be given
to payment of compensation is also seen in section 250(1) and (2) of the 1995 Act. Section
250(1A), inserted by the 2010 Act, is noteworthy. It permits the court to consider increasing
the amount payable under a compensation order at any time before a compensation order
has been complied with (or fully complied with). Section 251 of the Criminal Procedure
(Scotland) Act 1995, to which we have already alluded in passing, provides: –
(1A) On the application of the prosecutor at any time before a
compensation order has been complied with (or fully complied with), the
court may increase the amount payable under the compensation order if
it is satisfied that the person against whom it was made –
(a) because of the availability of materially different information
about financial circumstances, has more means than were made
known to the court when the order was made, or
(b) because of a material change of financial circumstances, has
more means than the person had then."
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[24] The 'relevant matters' for which compensation may be awarded have been extended
(by virtue of section 49 the Criminal Proceedings etc (Reform) (Sc) Act 2007) to include
alarm or distress (cf. Brown v Laing 2004 SLT 646 and Smillie v Wilson 1990 SLT 582). A
compensation order may be made in respect of funeral expenses (section 249(3C)) amongst
other losses. Section 249(1B) extends the ambit of 'relevant person' beyond the victim 'to a
person who is liable for funeral expenses in respect of a death (except where arising from a
road traffic accident). These examples underline Parliament's objective to help victims of
crime achieve greater satisfaction (Policy Memorandum to the Criminal Justice and
Licensing Bill).
[25] In these circumstances we do not consider that it is rational to conclude that
section 196(1) ought to apply to any order or requirement which has as its purpose
restitution. Compensation is intended to make amends to a victim for financial loss or
injury. That is the objective of the sentencing court when requiring an offender make
financial recompense. In effect, the criminal court is endowed with a mechanism for
awarding to the victim of a crime that which he or she could receive in a civil action for
damages. It would appear to fly in the face of that, and to contradict the apparent intention
of Parliament to extend the opportunities for the court to make a compensation order or
requirement, were the court then required to reduce the award to a lesser sum. Section
250(1A), discussed above, appears to us to reflect the legislature’s objective that a person
against whom a compensation order or requirement is made ought to make full recompense
to the victim and may be required to pay more than originally assessed if his means and
circumstances improve. That provision does not sit easily with discounting. If the effect of
legislative changes is to bring funeral expenses within the ambit of a compensation order or
CPO it is illogical to diminish that effect by ordering that only a proportion of the outlay
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ought to be paid, depriving the relative of full and proper recompense. Another example is
that of the window broken in an act of vandalism. The loss to the victim is readily known
once the glazier's bill is presented. If the court intends to compensate the householder for
the loss, three quarters of the outlay is scant satisfaction for the victim and fails to meet the
court's purpose and objective when awarding compensation. Of course, this appeal is
concerned with a compensation requirement in the nature of 'solatium' assessed by the
sheriff in light of the facts and circumstances available to him. It is the sheriff's assessment
of loss for alarm or distress rather than pure financial loss. We see no reason to make any
distinction between the two types of loss. The 'outlay' is readily ascertainable; the solatium
type is awarded as the court considers appropriate in the circumstances. Both awards are
amenable to challenge on appeal particularly so the solatium award if it is considered to be
excessive.
[26] We have some general observations as to discount. Not all sentences can or ought to
be discounted. It is accepted that extended sentences are not amenable to discount. They
are "an exception to the general principle of sentence discounting" (Gemmell paras [66] and
[67]). Statutory minimum sentences cannot be discounted (Gemmell para [68] and Wilson
[19]). It occurs to us that discount is not and ought not to be applied to the length of the
supervision requirement of a CPO nor to the duration of a treatment or similar order. These
requirements are imposed following consideration of the statutory pre-sentence report and
are based on advice given by a criminal justice social worker familiar with the treatment
resources available and the optimum term required to achieve the rehabilitative purpose. It
would undermine the purpose and the rationale of the CPO to then shorten the
recommended term by discounting. The application of rationality in sentencing is
necessary, particularly with a CPO where there may be several requirements depending on
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the offender's problems and the availability of resources in the community best assessed in
the pre-sentence report. That leads to the natural and rational conclusion that such
requirements should not be discounted. We are not aware of cases where it has been
suggested otherwise.
[27] Finally, we wish to mention the question of public confidence in the criminal justice
system and the credibility of sentences. In Gemmell Lord Gill devoted a section to this topic -
one of the risks of sentence discounting (paras [74] – [77]). If compensation was to be subject
to discounting we would have a real concern that victims of crime would quite rightly be
aggrieved at the outcome and this would lead victims and therefore the public to lose
confidence in the sentencing process and our system of criminal justice. The integrity of
restitution would be undermined. The objectives expressed in the Policy Memorandum
would not be met. The victim of vandalism would have difficulty understanding why the
court's intention to require an offender to make payment of the glazier's bill translates into a
mere contribution; likewise (perhaps more so) to the receipt by a bereaved relative of only a
proportion of the funeral expenses. The risk to public confidence is obvious and real.
However, we consider the risk to justice is greater. For these reasons we have come to the
conclusion that a compensation requirement of a CPO is essentially the same in character
and extent as a compensation order and that neither ought to be subject to discounting in
terms of section 196(1) of the 1995 Act. Accordingly, we refuse the appeal and affirm the
sentence imposed by the summary sheriff in Glasgow.
[28] As we have reached the conclusion that section 196(1) ought not to apply to any
compensation order or a compensation requirement as part of a community payback order,
we propose to issue this opinion in terms of section 189(7) of the 1995 Act as it will apply in
any case where the court orders that compensation be paid.