Scottish High Court of Justiciary Decisons

KEVIN CHARLES DUGGAN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 140 (2nd June, 1999)

The appellant, Kevin Charles Duggan, pled guilty on 12 January 1999 to a charge of an assault committed on 8 September 1998. The assault was a serious one, although it involved only one blow, committed against a 63 year old man who had been remonstrating with one of the appellant's children. The appellant may have misunderstood the precise circumstances but, however that may be, he punched the complainer causing him to fall to the ground and suffer an injury described as a severe primary brain injury which endangered life. The complainer fortunately made, and continues to make, a good recovery. The injury was, to some extent, caused by the fall rather than the punch. Nevertheless, the assault was a very serious one.

The sentencing judge, having described the circumstances, states that the appellant first appeared on this charge on 1 October 1998 from which time he remained in custody. On 19 November 1998, he was sentenced to a period of imprisonment for housebreaking. The precise length of the sentence is not stated but the earliest date for his release is given as 15 May 1999.

The judge also refers to the fact that the appellant had a bad record of previous convictions. The judge notes that this was an assault committed on the day of the appellant's release from an earlier sentence which had serious consequences for the victim. He then says he took into account that since 18 November 1998 the appellant had been serving a sentence in respect of another matter and had only spent six weeks on remand in respect of the present case and he says that against that background it seemed to him that the nature and effect of the present crime justified a sentence of two years imprisonment to run from the date of conviction. It did not in all the circumstances appear to him to be appropriate to backdate the sentence.

The appeal in the present case relates only to the question of backdating. Mr Jack, on behalf of the appellant, referred to Section 210 of the 1995 Act which, read short, requires that a period spent on remand should be taken into account in arriving at the appropriate sentence. Mr Jack submitted that either the sentencing judge should have made the sentence which he imposed run from a date earlier by six weeks than the actual date on which the sentence was imposed or that he should have allowed for it in some other way. He submitted that it was a matter of doubt whether the judge had in fact allowed for the period of six weeks spent on remand and that it was necessary that the Court should state its reasons for not taking account of that period.

In out view this appeal is quite without merit. The judge makes it clear that he did take into account the six weeks period spent on remand and the sentence itself is not in any open to challenge. The appeal is therefore refused.