Scottish High Court of Justiciary Decisons

ROSS SAMUEL TELFER v. HER MAJESTY'S ADVOCATE [1999] ScotHC 231 (6th October, 1999)

In this case the appellant pled guilty to assaulting his girlfriend to her injury while he was on Bail and to breaching further conditions of Bail by being out of his house after 7 p.m. and entering the town of Hawick.

The appellant had been remanded in custody for only one week in respect of the assault charge but for over three months (112 days to be exact) in respect of breaching the further conditions of Bail. Having regard to that latter period the Temporary Sheriff admonished the appellant on the separate Bail offences but sentenced him to 12 months imprisonment on the assault charge, three months being attributable to the aggravation that that offence was itself committed while on Bail. That sentence was not backdated by the sheriff on the view that the 112 days spent on remand were occasioned by, and thus attributable to, the separate Bail charges.

As regards these separate Bail offences the appellant's position - which was not contradicted - was that he only breached the conditions in question because he had been locked out of his flat and had gone to recover the keys from a friend. Any breach of trust is, of course, a serious matter but accepting, as we must, the appellant's plea in mitigation we agree with counsel for the appellant that the equivalent of some 7-8 months imprisonment in respect of these offences does in fact constitute excessive punishment.

So far as the sentence on the assault charge is concerned - which is the only sentence, as such, appealed against - the only point taken before this court was that in the foregoing circumstances the sentence of 12 months could, and should, have been backdated. We agree, in turn, with that submission but in view of the separate Bail offences we are not prepared to backdate it so far back as 16 April 1999, which was the date on which the appellant commenced his 112 day remand. Justice will, we think, be done if the sentence in question is backdated to 16 May 1999 and we shall accordingly quash that sentence and substitute a sentence of 12 months backdated to 16 May 1999.