APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Macfadyen
C.G.B. Nicholson,
C.B.E., Q.C.,
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[2006]
HCJAC 58
Appeal
No: XJ237/06
OPINION OF THE COURT
delivered by LORD
MACFADYEN
in
NOTE OF APPEAL AGAINST
SENTENCE
by
JAROSLAW WITOLD
WERESZCZYNSKI
Appellant;
against
PROCURATOR FISCAL, Dundee
Respondent:
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Act: Shead; Wilson McLeod
Alt: Galbraith, A.D.; Crown Agent
18 July 2006
Introduction
[1] This
appeal is concerned with a sentence of three months imprisonment imposed on 14 February 2006 by the sheriff at Dundee in respect of an admitted
breach of a probation order.
Procedural
History
[2] The
appellant first appeared in court in Arbroath on 3
May 2005 charged with assault. He was remanded
in custody. On 23 May he pled guilty of
the charge subject to one deletion. The
charge to which he pled guilty was that on 1 May 2005 he assaulted a young woman:
"and
did repeatedly slap and punch her on the face, seize her by the shoulders pinning
her to a bed, follow her to the sitting room of [the] house and repeatedly
punch her on the body and knock her to the ground all to her injury".
[3] On 23
May and again on 9 June the court adjourned the diet for the purpose of
obtaining reports. On these occasions
the appellant was again remanded in custody.
On 29 June 2005 the appellant was made the
subject of a probation order for one year.
[4] On 17 January 2006 before the sheriff at Dundee the appellant admitted
breach of the probation order. The court
adjourned the diet until 14 February for the purpose of obtaining reports. On this occasion the appellant was ordained
to appear. On 14 February the sheriff
sentenced the appellant to three months imprisonment, to commence from that
date. The appellant has appealed against
that sentence.
The grounds of
appeal
[5] The
grounds of appeal lodged on the appellant's behalf make a number of points,
including the following one:
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"3.
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In passing sentence it is submitted the Sheriff
failed to attach adequate weight to the following:-
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(ii)
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The appellant has spent a substantial period of time
in custody awaiting trial on the original complaint. He has been remanded in custody between 3 May 2005 and 29 June 2005, a period of some 57
days. He had accordingly already
served the equivalent of a sentence just short of four months
imprisonment. This being the
Appellant's first conviction for assault, he has already served a sentence in
excess of the maximum which could have been imposed."
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[6] Leave
to appeal was granted under section 107(1) of the Criminal Procedure (Scotland) Act 1995 (the 1995
Act). The judge, in granting leave, made
the following comment under section 107(1)(a):
"Granted on the question
whether it was appropriate to take into account the period spent on remand
prior to the imposition of a probation order."
The sheriff's
report
[7] In
explaining his selection of a sentence of three months imprisonment the sheriff
said:
"It did not appear to me
that there was any viable alternative to a custodial disposal. ...
[W]hat I was dealing with was a failure to comply with requirements
imposed on a probation order and what I could do was therefore regulated by the
provisions of section 232 of the 1995 Act.
The choices are the imposition of a fine up to level 3, which seemed
inapposite, sentencing the offender for the offence for which the order was
made, vary [sic] the probation order
or revoke [sic] the probation order
and substitute a community service order.
I can find no authoritative
guidance on the law of sentencing when an offender has failed to adhere to the
requirements of a probation order, beyond the statutory provisions. S. 232 itself is
silent upon any requirement to take account of time spent in custody or time on
the order. ... I accept that the appellant spent 56 days in
custody prior to the order being made but patently that was something which the
sheriff had regard to in deciding to place him on probation. The question to which I can find no immediate
answer in guidance is whether by placing him on probation account was then
taken of that period in custody and need not be taken again on the breach of
the order. I consider that must be so
otherwise there is no effective sanction in relation to an offender who has
spent time on remand and is then placed on any form of non-custodial order
which permits 'sentencing of new' when an order has been breached.
The net effect of that was
that when I came to sentence the appellant following upon the breach of
probation I took no account of his earlier period on remand. While I do not accept that the appellant had
demonstrated any enthusiasm for compliance with the probation order, I can see
that there is an argument that that has produced a result which is not entirely
fair to the appellant."
The
legislation
[8] As the
sheriff rightly identified, he was called upon to exercise the jurisdiction
conferred upon him by section 232(2) of the 1995 Act, which provides:
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"(2)
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If it is proved to the satisfaction of the court
before which the probationer appears or is brought in pursuance of subsection
(1) above that he has failed to comply with a requirement of the probation
order, the court may ―
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(b)
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sentence the offender for the
offence for which the order was made ...".
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The other courses available to the sheriff in terms of
section 232(2) were (a) to impose a fine not exceeding level 3 on the standard
scale, (c) to vary the requirements of the probation order, and (d) to make a
community service order.
[9] As the
sheriff rightly notes, section 232 says nothing about taking into account time
spent on remand. That is, however, dealt
with in section 210, which provides inter
alia as follows:
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"(1)
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A court, in passing a sentence of imprisonment or
detention on a person for an offence, shall ―
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(a)
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in determining the period of imprisonment or
detention, have regard to any period of time spent in custody by the person
on remand awaiting trial or sentence ...;
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(b)
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specify the date of commencement of the sentence;
and
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(c)
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if the person ―
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(i)
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has spent a period of time in custody on remand
awaiting trial or sentence;
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and the date specified under
paragraph (b) above is not earlier than the date on which sentence was
passed, state its reasons for not specifying an earlier date.
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The appellant's
submission
[10] Mr
Shead, who appeared for the appellant, accepted that the matter of time spent
in custody on remand had not been emphasised in the submissions made to the
sheriff. He submitted, however, that if
the appellant had been given a custodial sentence as the original disposal of
his case, the time spent on remand would have been taken into account and the
sentence would have been backdated accordingly.
The sheriff dealing with the breach of probation had elected to deal
with it in terms of section 232(2)(b) by sentencing
the appellant for the original offence by imposing a sentence of
imprisonment. Since this was the
appellant's first conviction for an offence inferring personal violence, the
maximum sentence was one of three months imprisonment (section 5(2)(d) of the 1995 Act).
The sheriff should have had regard to the time spent on remand, and
should accordingly have realised that the appellant had already spent in
custody a period in excess of the equivalent of three months imprisonment (when
account is taken of the effect of section 1(1) of the Prisoners and Criminal
Proceedings (Scotland) Act 1993 (the 1993 Act)). The appropriate course would therefore have
been, on that account, to admonish the appellant.
Discussion
[11] The
proper starting point for consideration of the course taken by the sheriff is
section 232. It enables the sheriff, on
finding that there has been a failure to comply with a requirement of a
probation order, to take one of the courses outlined in section 232(2)(a) to (d). The
sheriff elected to proceed under section 232(2)(b),
and it is not suggested that he was not entitled to do so. It is to be noted, however, that in
proceeding under section 232(2)(b), the sheriff was
sentencing the offender for the original offence. He was not imposing a punishment for the
failure to comply with the requirements of the probation order. That being so, if the sheriff was passing a
sentence of imprisonment, section 210(1) applied. The sheriff was "passing a sentence of
imprisonment ... on a person for an offence".
He was therefore obliged, in determining the period of imprisonment, to
"have regard to" any period of time spent in custody on remand awaiting trial
or sentence.
[12] It
follows that the sheriff misdirected himself in taking no account of the period
which the appellant had spent on remand awaiting trial and sentence. It is therefore for us to reconsider the
sentence which the sheriff imposed. Like
him, we are obliged by section 210(1) to "have regard to" the period spent on
remand awaiting trial or sentence. We do
not suggest that the obligation to "have regard" to the time spent on remand
means that that time must necessarily be deducted in calculating the sentence
to be imposed under section 232(2)(b).
Given, however, that the sentence to be selected under section 232(2)(b) is to be a sentence "for the offence for which the
[probation] order was made", we do not consider that it should properly include
any element of punishment for the breach of probation as such. We therefore find it difficult to see, in the
circumstances of the present case, any basis for imposing a sentence of
imprisonment of greater length than would have been imposed if imprisonment had
been the sentence originally selected.
In the ordinary way under section 210, a sentence of imprisonment would
be backdated to take account of time spent in custody on remand. If that approach is adopted in the present
case, and if account is taken of the applicable early release provisions
(section 1(1) of the 1993 Act), the 56 or 57 days spent by the appellant on
remand exceeds the period which he would have spent in custody if the maximum
sentence available under section 5(2)(d) of the 1995
Act had been imposed in the first instance.
In these circumstances, we consider that the only proper way in which to
"have regard to" the time spent in custody on remand, in the circumstances of
the present case, is to treat that time as part of the maximum available prison
sentence. That being so, we are persuaded
that Mr Shead was right in his submission that the appropriate course to take
is to regard the appellant as having served the equivalent of a sentence of
more than 3 months imprisonment, and therefore to restrict the sentence imposed
under section 232(2)(b) to one of admonition.
Result
[13] We
accordingly allow the appeal, quash the sentence of three months imprisonment,
and substitute an admonition.