Scottish High Court of Justiciary Decisons

PAUL McKIM v. PROCURATOR FISCAL, GREENOCK [2000] ScotHC 47 (7th April, 2000)

[1] The appellant is Paul McKim who was originally convicted at Greenock Sheriff Court on 14 January 1997 of two charges, one a contravention of Section 4(3)(a) and the other a contravention of Section 23(4)(a) of the Misuse of Drugs Act 1971. He was sentenced to three years imprisonment on the first of these charges and to six months on the second, both sentences to run concurrently. Those sentences would have expired on 9 January 2000 but he was released early under Section 1(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act") on 31 July 1998. On 12 October 1999 at Greenock Sheriff Court the appellant was convicted on summary complaint of having a knife with him in a public place on 11 March 1999, in contravention of Section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 ("the Consolidation Act"). He has appealed against the sentence imposed on him on this occasion.

[2] It is common ground that Section 16 of the 1993 Act applied to the appellant, since he had been sentenced to a term of imprisonment by Greenock Sheriff Court, had been released under Part I of the Act, had then, before the date on which he would (but for his release) have served his sentence in full, committed an offence punishable with imprisonment and had been found guilty of that offence (Section 16(1)). Subsection (2) provides inter alia:

Subsection (5) goes on to provide in part:

[3] As we have explained, on 12 October 1999 the appellant was found guilty of a contravention of Section 49(1) of the Consolidation Act. Unfortunately the minute failed to record that finding of guilt and simply said:

Another notable feature of the minute is that it does not record the making of the Section 16 order and the determination that the period of 304 days under that order was to be served before and be followed by any sentence of imprisonment imposed for the new offence. As this court explained in Brown v. H. M. Advocate 1999 J.C. 248 at p. 254 I - 255 C, this is the approach which sheriffs should adopt and which should long since have been reflected in the computer software used to produce the court minutes. Unfortunately, it appears that the appropriate changes had not been adopted in Greenock Sheriff Court by October 1999. Therefore, when the appeal originally came before a court of two Lords Commissioner of Justiciary, in terms of Section 299(4) of the Criminal Procedure (Scotland) Act 1995 they directed that the appeal should proceed as if a finding of guilt and an order in terms of Section 16 had been correctly minuted and then continued the appeal to be considered by a court of three Judges.

[4] We approach the appeal, accordingly, on the basis that the appellant was convicted of the contravention of Section 49(1) of the Consolidation Act; that the Sheriff directed that he should be returned to prison for 304 days under Section 16(2)(a) of the 1993 Act, that period to be served before and to be followed by any sentence imposed for the new offence; and that, for the new offence, the Sheriff imposed a sentence of three months imprisonment to be served after the Section 16(2)(a) period. The appellant has appealed against the period of 304 days imprisonment ordered under Section 16(2)(a).

[5] In addressing us on the appellant's behalf Miss Ogg, who had appeared before the court comprising two Judges, indicated that they had expressed some misgivings about the procedure laid down in Cowan, at least in a case where the same sheriff was dealing with the Section 16(2)(a) order and with the sentence for the new offence. The suggestion was, apparently, that there was some artificiality in the idea that the sheriff could in effect deal with the two matters independently: the length of any period selected under Section 16(2)(a) would tend to be affected by the length of the sentence of imprisonment, if any, which the sheriff might be contemplating imposing for the new offence.

[6] In giving the opinion of the court in Cowan, the Lord Justice General expressly recognised (1999 J. C. at p. 254 I) that, in a case like the present where the same sheriff was dealing with both matters, the approach prescribed by the court might appear somewhat technical. None the less, having reconsidered the matter, we are satisfied that the approach laid down in Cowan is correct. Where the court dealing with the new offence is inferior to the court which imposed the original sentence of imprisonment, the inferior court must refer the case to the superior court to consider whether to make an order under Section 16(2)(a). In any such case, the superior court necessarily determines the appropriate period, and whether it should be served before or concurrently with any period of imprisonment for the new offence, without knowing whether the inferior court will decide to imprison the accused for the new offence and, if so, for how long. In that situation it is obvious that the period ordered under Section 16(2)(a) must be determined quite independently of the sentence for the new offence. If the legislation is to work in the same way in all cases, the position must be exactly the same where the one court is dealing with both issues.

[7] In any event, in principle the period to be ordered under Section 16(2)(a) has nothing to do with the sentence which is to be ordered for the new offence. The Section 16(2)(a) period is one which may fall to be ordered because, by committing a new offence before the expiry of the original sentence, the accused has violated the trust placed in him when he was released early under Section 1 of the 1993 Act. When determining that period, the court is determining the appropriate period for the accused to serve because of that breach of trust. That matter is not affected by the sentence which the court may choose to impose as a punishment for the new offence. On the other hand, the nature of that new offence will, of course, be a significant factor for the court in determining the Section 16(2)(a) period since the more serious the offence, the more serious the breach of trust. As Lord Sutherland remarked, giving the opinion of the court in Smitheman v. Lees 1998 S.C.C.R. 108 at p. 110 C:

In Smitheman and in Lynch v. Normand 1995 S.C.C.R. 404 at p. 405 F, the court recognised that the accused's record may be a relevant factor for these purposes. This is because in an appropriate case the gravity or otherwise of the new offence - and hence the gravity of the breach of trust - will fall to be considered in the light of the accused's record.

[8] In his report in this case the Sheriff explains that, in imposing the sentence of three months imprisonment for the new offence, he took into account the fact that he was to make an order under Section 16 of the 1993 Act. If he had not been making that order he would have imposed a sentence of "at least" six months imprisonment in respect of the contravention of Section 49(1). Unfortunately, on this matter the Sheriff's approach was wholly misconceived since the closing words of Section 16(5)(b) require the court to disregard any period under Section 16(2)(a) when determining the appropriate length of the sentence for the new offence. Since the appellant has not appealed against the three-month period of imprisonment for the new offence, however, we cannot interfere with that sentence.

[9] The only question for us is whether the period of 304 days imprisonment under Section 16(2)(a) can properly be regarded as excessive. Miss Ogg accepted that the Sheriff would have been justified in ordering the appellant's return to prison for some period but submitted that he had been wrong to select a period equivalent to the whole of the unexpired portion of the original sentence. She pointed out that the appellant had remained out of trouble for some seven months after his release and had gone into a garage business with a friend. During that period also his girlfriend had been undergoing a course of drug rehabilitation therapy and the appellant had required to assume responsibility for looking after their child. The new offence should be seen as no more than a hiccough in what was otherwise a favourable train of events.

[10] Despite those submissions we are unable to regard the period of 304 days as excessive. The appellant has an extensive record of previous convictions, including a contravention of Section 1 of the Prevention of Crime Act 1953 in Greenock Sheriff Court in 1985 and, most importantly, convictions of assault and attempted murder in the High Court at Paisley in 1988 when he was sentenced to 7 years imprisonment, with an additional 2 months for a Bail Act offence. In our opinion, the contravention of Section 49(1) of the Consolidation Act cannot be regarded as other than serious where the appellant has a previous conviction for such a grave offence involving violence. That being so, we are satisfied that the Sheriff was entitled to take the view that the appellant had breached the terms of his release in a serious way and that this could be marked in a fitting fashion by ordering his return to prison for a period equivalent to the whole of the balance of the original term of imprisonment. For these reasons the appeal against sentence must be refused.