APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Johnston
Lord Philip
Lord Kingarth
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[2006] HCJAC 86Appeal No: XC195/06OPINION OF THE COURT delivered by LORD KINGARTH in NOTE OF APPEAL by RONALD O'NEILL MARTIN Appellant' against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Taylor, solicitor advocate; Bruce Short,
Alt: D. Young, A.D.; Crown Agent
[1] On
[2] On the same
date he also pled guilty, on a separate indictment, to a contravention of
section 27(7) of the Criminal Procedure (
[3] The history
of proceedings, so far as relevant, is that the appellant first appeared on
petition in respect of the charge of attempted robbery on 17 August 2005, and
was committed in custody for further examination. He was fully committed in custody on
[4] In her Report
the sheriff informs us that in sentencing the appellant she decided that the
starting point for the attempted robbery was a sentence of 18 months
imprisonment. She chose not to allow any
discount for the plea of guilty, given that it was tendered at the trial diet,
and her approach on that matter is not challenged. Nevertheless, she did consider it appropriate
to make a deduction to take account of the period spent on remand (to which
period she was obliged to "have regard" under section 210(1)(a)
of the Criminal Procedure (
"In order to recognise the two
periods which the appellant had spent on remand, I considered that the simplest
way to deal with this was to add these together and deduct them from the period
of 18 months. As previously stated,
the appellant spent 112 days in custody in relation to the attempted robbery
indictment and 68 days in relation to the second indictment containing the
charge of failing to appear. I therefore
deducted 6 months from the period of 18 months imprisonment".
[5] The only
ground of appeal which was insisted on before us was that the sheriff erred in
failing to recognise that the total period of about 6 months spent on remand
"would, in
the ordinary course of events, amount to the equivalent of 12 months
imprisonment. The learned sheriff
deducted only 6 months from the sentence that she would have imposed, which was
18 months. It is respectfully submitted
that it would have been more appropriate to deduct a total of 12 months from
the 18 months imprisonment".
In her Report the sheriff comments on this ground of appeal
as follows:
"In relation to the sentence imposed
on the charge of attempted robbery, the Note of Appeal suggests that I should
have deducted 12 months from the period of 18 months imprisonment. I do not understand this contention. The accused was on remand during the periods
referred to, not a serving prisoner. The
ground of appeal therefore amounts to a suggestion that, every time a sheriff
backdates a sentence to take account of a period on remand, he should in fact
double that period;
that in my view is nonsense."
[6] In presenting
the appeal Mr. Taylor argued that, in circumstances where it was clear that the
sheriff wished to give credit for the periods on remand but could not readily backdate
the sentence to be imposed (given the interval of time during which the
appellant had been on bail), the fair way for her to have done so would have
been to deduct 12 months for the reasons mentioned in the ground of appeal.
[7] The advocate
depute, for his part, did not dispute that, in circumstances like the present,
ordinarily, although not necessarily in every case, the approach contended for
by the appellant would be the appropriate course. He could not support the view of the sheriff
that this would be nonsense (or indeed her remarks about the implications for
backdating).
[8] In our opinion,
in the circumstances of this case, the sheriff can be said to have erred. Although she could well have approached the
matter differently, she clearly decided (favourably from the point of view of
the appellant) that it was appropriate that the total period spent on remand should
be taken account of. In circumstances
where she could not readily backdate, given the period spent on bail, she
simply deducted that period from the sentence which she would otherwise have
imposed. The question is whether that
went far enough. Although, as the
sheriff points out, a period on remand is different from a period spent in
custody following sentence, the important point is that in both cases the
prisoner is deprived of his or her liberty.
And deprivation of liberty on remand is, in the ordinary case, for the
same period as it would be if the prisoner had been sentenced to twice that
period (given the provisions of section 1(1) of the Prisoners and Criminal
Proceedings (
[9] In these
circumstances we shall allow the appeal, quash the sentence imposed and
substitute a sentence of 6 months imprisonment.