Non-custodial sentence for domestic abuser was 'not unduly lenient', rules Appeal court

A panel of judges ruled that a sheriff’s decision to not impose a custodial sentence on a man convicted of repeated domestic abuse offences was not ‘unduly lenient’.

On the 18^th February 2019, the respondent – who was named CJB – pled guilty at Aberdeen Sheriff Count to three charges involving assault on his wife and two daughters. All three charges related to various occasions of assault against the wife (between 1998 and 2015), his first daughter (between 2000 and 2015), and second daughter (between 2004 and 2015).

Instead of choosing a custodial sentence, the sheriff imposed a Restriction of Liberty Order (RLO) – under which CJB would be confined to his home between 8 pm and 8 am for 11 months – as well as a Probation Order – involving two years’ supervision and 220 hours of unpaid work.

The sheriff reported that while a custodial sentence was ‘very much at the forefront of her mind’, the respondent was not considered to be a risk to the public and that ‘punishment’ could be achieved by the RLO that would prevent CJB from working offshore and, instead, carry out unpaid hours of work.

At the Appeals Court, Lords Carloway, Drummond Young and Malcolm explained that the appeal raised the question of whether abusive conduct in the domestic context over a prolonged period of time ought to be met with a custodial disposal.

While acknowledging that the repeated assaults ‘could have attracted a significant custodial disposal’, Lord Carloway said that the sheriff followed the Scottish Sentencing Council’s first guideline – Principles and Purposes of Sentencing – which had been approved by the High Court in October last year. The guideline stated that “sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case”.

Referring to Section 204(2) of the Criminal Procedure (Scotland) Act 1995 – ‘a court shall not pass a sentence of imprisonment… unless the court considers no other method of dealing with him is appropriate’ – the Lord Justice General said the sheriff’s detailed report made it clear she had considered all factors and options:

“The sheriff’s balancing of the relevant factors, which was firmly based on a proper consideration of the sentencing guideline, may be seen as producing a lenient sentence. That sentence is, however, well reasoned.

“It cannot be regarded as ‘unduly lenient’… The appeal is therefore refused.”

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