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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Osborne
Lord Macfadyen
Lord Marnoch
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[2006] HCJAC 36
Appeal No: XJ1908/05
OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
BILL OF SUSPENSION
by
ROBERT PENMAN
Complainer;
against
PROCURATOR FISCAL, Dundee
Respondent:
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Complainer: M.C. MacKenzie; Drummond Miller
Respondent: G.C. Bell, Q.C., ad hoc A.D.;
Crown Agent
4 April 2006
Introduction
[1] On 5 September 2005 the complainer appeared in Dundee
Sheriff Court at an intermediate diet in a summary
complaint containing seven charges of theft.
His pleas of not guilty to charges 1 and 2 were accepted. He tendered pleas of guilty to charges 3, 4,
5, 6 and 7. Each of the charges to which
he pled guilty was aggravated by having been committed while the complainer was
the subject of three bail orders, namely orders granted at Dundee
Sheriff Court on 9 August 2004 and 14 March 2005 and at Dundee District Court on 9 June 2005. After two periods of deferral of sentence,
the complainer was on 19 December sentenced to a total of eighteen months
imprisonment.
[2] As
the sheriff has explained at page 4 of his report, and as is borne out by the
minutes of proceedings, the total sentence of eighteen months which he imposed
was made up as follows:
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Charge 3:
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four months imprisonment, three
months of which related to the bail aggravation;
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Charge 4:
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four months imprisonment, three
months of which related to the bail aggravation;
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Charge 5:
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four months imprisonment, three
months of which related to the bail aggravation
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Charge 6:
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four months imprisonment, three
months of which related to the bail aggravation
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Charge 7:
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two months
imprisonment,, one month of which related to the bail aggravation.
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The five sentences were ordered to
be consecutive to each other.
[3] In
respect of those sentences the complainer has brought a bill of suspension. The contention which he advances is that the
sentences imposed by the sheriff exceed the aggregate sentence which it was
competent to impose in respect of the complaint. Although there were differences in detail
between the submissions made by Ms MacKenzie, who appeared for the complainer,
and by the Advocate depute, both maintained that the sheriff had exceeded the
maximum aggregate sentence which could competently be imposed in respect of the
complaint. The sheriff, however, set out
in his report in some detail his reasons for taking the view that the sentences
which he imposed were competent. In
these circumstances, notwithstanding the broad agreement between the complainer
and the respondent, we heard full argument on the issue of competency.
The statutory framework
[4] The
appropriate starting point at which to begin examination of the sheriff's powers
with regard to sentence is section 5 of the Criminal Procedure (Scotland) Act 1995
("the 1995 Act"). That section provides inter alia as follows:
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"(2)
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The sheriff shall, without
prejudice to any other or wider powers conferred by statute, have power on
convicting any person of a common law offence - ...
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(d)
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to impose
imprisonment, for any period not exceeding three months.
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(3)
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Where a person is convicted by
the sheriff of -
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(a)
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a second or subsequent offence
inferring dishonest appropriation of property, or attempt thereat; ...
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he may,
without prejudice to any wider powers conferred by statute, be sentenced to
imprisonment for any period not exceeding six months".
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Those provisions bear to relate to
the sheriff's sentencing powers in respect of a single charge. We shall return in due course to the question
of the limits on the sheriff's powers in sentencing in respect of more than one
charge on a single complaint.
[5] The
issue in the present case arises from the manner in which the sheriff treated
the fact that each of the charges with which he had to deal was aggravated by
the substantive offence having been committed while the complainer was the
subject of bail orders. The statutory
provisions which apply in that situation are to be found in section 27 of the
1995 Act. That section provides inter alia as follows:
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"(1)
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Subject to subsection (7) below,
an accused who having been granted bail fails without reasonable excuse -
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(a)
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to appear at the time and place
appointed for any diet at which he has been given due notice; or
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(b)
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to comply with any other
condition imposed on bail,
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shall, subject
to subsection (3) below, be guilty of an offence and liable on conviction to
the penalties specified in subsection (2) below. ...
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(3)
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Where, and to the extent that,
the failure referred to in subsection (1)(b) above consists in the accused
having committed an offence while on bail (in this section referred to as
"the subsequent offence"), he shall not be guilty of an offence under that
subsection but, subject to subsection (4) below, the court which sentences
him for the subsequent offence shall, in determining the appropriate sentence
or disposal for that offence, have regard to -
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(a)
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the fact that the offence was
committed by him while on bail and the number of bail orders to which he was
subject when the offence was committed;
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(b)
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any previous convictions of the
accused of an offence under subsection (1)(b) above; and
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(c)
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the extent to which the sentence
or disposal in respect of any previous conviction of the accused differed, by
virtue of this subsection, from that which the court would have imposed but
for this subsection. ...
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(5)
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Where the maximum penalty in
respect of the subsequent offence is specified by or by virtue of any
enactment, that maximum penalty shall, for the purposes of the court's
determination, by virtue of subsection (3) above, of the appropriate sentence
or disposal in respect of that offence, be increased -
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(a)
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...
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(b)
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where it is a period of
imprisonment -
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(i)
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as respects a conviction in the
High Court or the sheriff court, by 6 months; ...
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notwithstanding that the
maximum penalty as so increased exceeds the penalty which it would otherwise
be competent for the court to impose."
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The complainer's submissions
[6] Ms
MacKenzie relied on a line of authority beginning with Maguiness v MacDonald 1953
JC 31 and Kesson v Heatly 1964 JC 40, and culminating in
the full bench decision in Nicholson v
Lees 1996 JC 173, which settled that
a sheriff cannot, when dealing with a complaint on which two or more charges
appear, impose a total period of imprisonment which exceeds in aggregate the
maximum prescribed for the charge which carries the highest penalty. The logic of that state of affairs may not be
immediately obvious, but the relevant rules were definitively expressed in Nicholson v Lees, at 179E, as follows:
"Where
two or more charges are contained in a single complaint, the court cannot
competently impose a total period of imprisonment which exceeds in aggregate
the upper limit permitted for that court in the particular case by common law
or statute. ...
Where two
or more charges each attract a different maximum, the highest penalty which can
competently be imposed is the maximum prescribed for the charge which carries
the highest penalty."
[7] In applying that approach to the present
case, it was necessary to work through a number of stages of calculation. First, the maximum sentence in respect of the
substantive part of charge 3 was three months imprisonment, because the
complainer had no previous conviction in respect of an offence inferring
dishonest appropriation of property. In
respect of charges 4, 5, 6, and 7, however, the maximum was six months, since
they were, by virtue of the complainer's conviction in respect of charge 3,
second and subsequent offences inferring dishonest appropriation of property
(section 5(3)(a)). Thus, ignoring for
the time being the bail aggravations, the maximum sentence which the sheriff
could have imposed by the application of the rules quoted above from Nicholson v Lees, was six months imprisonment, whether that aggregate was
achieved by concurrent or consecutive sentences.
[8] The second stage of the calculation
depended on a proper application of section 27.
It was crucial, it was submitted, to realise that subsection (3) made an
exception to subsection (1). Under
subsection (1) most failures to comply with bail conditions constitute
independent offences, attracting separate penalties under subsection (2). Under subsection (3), however, where the
failure to comply with a condition imposed on bail consisted in having
committed an offence while on bail, that failure did not constitute an offence
under subsection (1). Instead, it
constituted an aggravation of the subsequent offence. The aggravation took effect in two stages. First, the court in determining the
appropriate sentence or disposal for the subsequent offence required to take
into account the factors mentioned in paragraphs (a), (b) and (c) of subsection
(3). Secondly, in subsection (5), the
maximum penalty in respect of the subsequent offence was, "for the purpose of
the court's determination, by virtue of subsection (3) above, of the
appropriate sentence or disposal in respect of that offence", increased, in
respect of a sheriff court conviction, by six months.
[9] The consequence of following through
these stages was that the maximum sentence in respect of each charge was
increased. In the present case, the
maximum sentence of imprisonment on respect of charge 3 was increased to nine
months, and the maximum sentence of imprisonment in respect of each of the
other charges was increased to twelve months.
That was the correct way of viewing the effect of section 27. It did not provide for separate additional
sentences where a subsequent offence was committed while on bail. That was precisely what subsection (3) ruled
out. Instead, the maximum sentence for
each subsequent aggravated offence was increased by six months.
[10] The final stage of the calculation
involved determining how the rules set out in Nicholson v Lees affected
the matter. The maximum aggregate
sentence that could competently be imposed in respect of the complaint was the
maximum sentence which could be imposed in respect of the charge which carried
the highest penalty. In the present case
that was twelve months, because twelve months was the maximum increased
sentence available in respect of charges 4, 5, 6 and 7 (the maximum in respect
of charge 3 being nine months). That was
the result correctly figured in Connal v
Crowe 1996 SCCR 716, per Lord
Sutherland at 718B.
Crown submissions
[11] The Advocate depute did not dispute the
soundness of the foregoing analysis. He
addressed, however, an additional complication which would arise when, as in
the present case, the aggregate sentence attributed to the substantive parts of
the subsequent offences fell below the maximum which would have been competent
if there had been no bail aggravations. In
the present case, the sheriff attributed one month of the sentence in respect
of each charge to the substantive offence of dishonesty, making an aggregate of
five months. The question which the
Advocate depute posed was whether that left available to be attributed to the
bail aggravations six months (namely the increase authorised under section
27(5)) or seven months (namely the increased penalty comprising the maximum
available under section 5 plus the increase authorised by section 27, less the
period actually attributed to the substantive offences). The converse situation can also be figured:
would it have been competent in the present case for the sheriff to deploy the
whole of the twelve months available under sections 5 and 27 by attributing
more than six months to the substantive offences and less than six months to
the aggravation?
[12] The Advocate depute laid before us a
number of cases which he submitted were in conflict. The first of these was Hamilton v Heywood
1997 SCCR 783. There the appellant
pled guilty to two charges in respect of which the maximum competent sentence
was three months. Each charge was
aggravated by being committed while the appellant was subject to two bail
orders. The sheriff sentenced the
appellant to two consecutive sentences of four month's imprisonment, one month
of each sentence being attributable to the bail aggravation. The Crown conceded that since the sheriff had
attributed only two months to the bail aggravation, the maximum aggregate
sentence that could competently be imposed was five months. The court observed that the Crown's
concession might have to be reconsidered.
The second case cited by the Advocate depute was Hepburn v Howdle 1998
SCCR 363. That case did not involve the
application of section 27. The
appellant, who had previous convictions for offences of dishonesty, pled guilty
on summary complaint to two charges, one of theft and one of breach of the
peace. The sheriff, who had power to
impose a sentence of six months imprisonment in respect of the theft charge by
virtue of section 5(3)(a), in fact imposed sentences of three months
imprisonment on each charge, the sentences to be consecutive. The appellant argued that the sheriff had no
power to impose an aggregate sentence greater than the sentence actually
imposed in respect of the charge to which section 5(3)(a) applied. The court rejected that argument. The Lord Justice Clerk (Lord Cullen),
delivering the opinion of the court, said (at 365B):
"In our view the plain meaning of subsection (3)(a) is to
increase the general limit of the sheriff's sentencing power in regard to
offences at common law where there is a charge which attracts the application
of that provision. In that situation the
general limit provided by subsection (3)(a) replaces
that under subsection (2)(d). Accordingly,
it is of no consequence what combination of sentences is adopted, so long as
the overall total of six months is not exceeded."
The
court went on to state (at 367B) that the concession in Hamilton v Heywood
had been wrongly made.
[13] The Advocate depute went on to say that Hepburn v Howdle appeared to have been lost from sight. It appears not to have been cited in Jackson v McFadyen
2001 SCCR 224, which was the third case laid before us. It was concerned with section 27. The appellant, who had previous convictions
for personal violence, and could thus competently be given a sentence of six
months imprisonment by virtue of section 5(3)(b), pled guilty to three charges
of assault, all committed while on bail.
In respect of charges 1 and 2 he was sentenced to five months
imprisonment, of which one month was attributed to the bail aggravation. He was sentenced to three months imprisonment
on the third charge, consecutive to the five month sentence, thus making a
total of eight, of which only one related to the bail aggravations, and thus
seven related to the substantive offences.
His appeal against the second sentence was upheld on the ground that it
was of incompetent length, and it was reduced to two months. The Crown withdrew the Hamilton concession and advanced an argument
summarised by Lord Prosser in the opinion of the court (at 228F) as follows:
"[The Advocate depute] contended that the twelve month
maximum which was available in relation to charges 1 and 2 in the present case
permitted not merely total sentences amounting to six months plus whatever the
sheriff might attribute to the bail aggravations, but sentences such as those
imposed by the sheriff, using the additional six months provided for by section
27(5) not only for the purpose of adding one month because of the bail
aggravation, but also as enabling the sheriff to impose consecutive sentences,
amounting to eight months in all, including that month."
That
argument was rejected. Lord Prosser said
(at 229B-C):
"But it is to be observed that subsection 5 [of section 27]
does not simply increase the maximum in respect of the offence. It increases it for specified purposes: 'for
the purposes of the court's determination, by virtue of subsection (3) above,
of the appropriate sentence or disposal in respect of that offence'. It does not appear to us that the increase
exists or is made available at large, or can be used for any other purposes
than those prescribed. And while of
course the court in determining sentence will have regard to all the relevant
circumstances, the determination 'by virtue of subsection (3) above' must in
our opinion be read as relating to the specified heads (a), (b) and (c)."
The
Advocate submitted that we should follow Hepburn
rather than Jackson, and in
effect hold that the sheriff, having attributed an aggregate of only five
months imprisonment to the substantive offences, had seven months available to
attribute to the bail aggravation.
Discussion
[14] We are satisfied that on the principal
issue raised by the bill the submissions made on the complainer's behalf and
concurred in by the Advocate depute are correct. On the basis of the analysis set out in
paragraphs [6] to [9] above, we are of opinion that the effect of section 27(3)
and (5) was to increase the maximum sentence in respect of each charge by six
months, and that applying the rules set out in Nicholson v Lees the
maximum aggregate sentence of imprisonment which could competently be imposed
in respect of the complaint was twelve months, whether that total was made up
of concurrent or consecutive sentences. It
follows that the bill must be passed.
[15] The issue raised by the Advocate depute
does not arise directly, but it may be of assistance to the sheriff for us to
indicate our views on it. We do not consider
that Hepburn and Jackson are in conflict. Hepburn was concerned with a statutory
provision (section 5(3)) which simply increased the sheriff's sentencing power
when the accused person had certain previous convictions. In that context we agree with the observation
by Lord Justice Clerk Cullen which we have quoted in paragraph [11] above. Jackson, however, was concerned with the
more complex provisions of section 27. As
Lord Prosser pointed out, the increased powers conferred by section 27(5) are
conferred for the specific purpose identified.
We agree that it follows from that that they may only be used for that
purpose, namely to reflect the bail aggravation. If less than six months is attributed to the
bail aggravation, the balance cannot be used to increase the period available
to be attributed to the substantive offence.
Conversely, if the period attributable to the substantive offence is
less than the maximum which that offence could attract if there were no bail
aggravation, the surplus cannot be used to augment the extra six months
provided for by section 27(5), because that subsection contemplates that the
extra six months is the maximum attributable to the bail aggravation. In the result, therefore, if the sheriff were
to adhere to an aggregate of five months in respect of the substantive
offences, the maximum he could add in respect of the bail aggravation would
remain six months, being the addition permissible in respect of any one charge.
Result
[16] As we have already indicated, we shall
pass the bill and suspend the sentences complained of. In that situation we regard it as appropriate
to remit to the sheriff to proceed as accords in the light of this opinion.
