Scottish High Court of Justiciary Decisons

IAN HUTCHESON v. HER MAJESTY'S ADVOCATE [2000] ScotHC 105 (22nd November, 2000)

[1] On 28 May 1999, the appellant, Ian Hutcheson, pled guilty at the High Court at Edinburgh to a charge repeatedly striking the complainer on the head with a baton or similar instrument to his severe injury and to the danger of life and to committing the offence while he was on bail. The appellant had been in custody since 3 February 1999, i.e. for a period of nearly four months. The sentencing judge imposed a sentence of four years imprisonment which he did not backdate. The appellant has appealed against that sentence but only in respect of the sentencing judge's decision not to backdate the sentence.

[2] When imposing the sentence, the trial judge addressed the appellant in these words:

[3] Section 210(1) of the Criminal Procedure (Scotland) Act 1995 provides inter alia:

[4] In his report to this court the trial judge informs us that when passing sentence he did take into account the period spent by the appellant on remand. He did not backdate the sentence because he considered the period of four years imprisonment to be, of itself, an inadequate punishment. This was in accordance with a practice which he has frequently followed in other cases. The alternative course, he says, would have been to increase the sentence, but to avoid untidiness, that would probably have involved a longer overall period in custody, even taking account of remission.

[5] From his remarks to the appellant and from the terms of his report, it appears to us that the trial judge was of the view that a sentence somewhat greater than four years imprisonment was required to reflect the gravity of the offence, especially having regard to the fact that it was committed while the appellant was on bail. In effect, he considered that a period of three months imprisonment was appropriate to reflect that aggravation and that he could impose the total sentence which he considered that the offence merited by selecting a sentence of four years imprisonment from the date of sentence. This would mean that the appellant would be sentenced to a total of the four months which he had already served plus the period of four years from 28 May 1999.

[6] We express no view on whether this was the most appropriate course for the trial judge to adopt when imposing sentence. What is important, however, is that, the trial judge's explanation shows that, as required by Section 210(1) of the 1995 Act, in determining the period of imprisonment, he did indeed have regard to the period of time which the appellant had spent in custody awaiting trial. Before we could allow the appeal, therefore, we should require to be satisfied that the sentence as selected and explained by the trial judge could properly be regarded as excessive. Even after taking all the mitigating circumstances into account, we are unable to say that the total sentence was excessive for a horrendous attack involving blows to the complainer's head with a pick-axe handle, resulting in a fracture of the skull and a haematoma which required an emergency operation. The appeal against sentence is accordingly refused.