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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
Lord Philip
Lord Kingarth
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[2006] HCJAC 87
Appeal No: XC408/06
OPINION OF THE COURT
delivered by LORD PHILIP
in
APPEAL AGAINST SENTENCE
by
COLIN McGHEE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
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Act: Taylor, solicitor advocate; Paterson Bell, Kirkcaldy
Alt: D. Young, A.D.; Crown Agent
23 November 2006
[1] This is an
appeal against sentence by Colin McGhee who pled guilty on 5
June 2006 on
the first day of a trial diet at Perth Sheriff Court to a charge of assault with intent
to rob, committed while he was a prisoner in Perth Prison. He was sentenced to 5 years imprisonment to
run consecutively to a sentence imposed on 21 October 2005.
That sentence was an extended sentence of 12 years, of which the
custodial term was 9 years and the extension period 3 years. His earliest date for release from that
sentence is 11 April 2011.
[2] The terms of
the charge to which the appellant pled guilty were as follows:
"on 27 January 2006 at Cell 16, Flat
3, 'A' Hall, HM Prison, 3 Edinburgh Road, Perth you JOSEPH HORSBURGH and COLIN
McGHEE did assault Jamie John Milne, care of Tayside Police, Perth lock him
within said cell and detain him there against his will, demand drugs from him,
threaten to insert a container into his anus, threaten to squirt the contents
of said container into his rectum, present homemade weapons at him, hold said
weapons against his face and neck, force him to pull down his shorts and pants,
force him to squat over a toilet and attempt a bowel movement, insert the
nozzle of a container into his anus, squeeze the contents of said container
into his rectum, force him to return to the toilet and attempt a bowel
movement, threaten to stab him, kick him on the face and threaten to kill him
if he reported said assault, all to his injury and with intent to rob him."
Section 3(3) of the Criminal Procedure (Scotland) Act 1995 provides:
"The sheriff shall without prejudice
to any other or wider power conferred by statute, not be entitled, on the
conviction on indictment of an accused, to pass a sentence of imprisonment for
a term exceeding 5 years."
Section 195(1) of the Act provides:
"Where at any diet in proceedings on
indictment in the Sheriff Court, sentence falls to be imposed but the sheriff
holds that any competent sentence which he can impose is inadequate ... so that, ...
the question of sentence is appropriate for the High Court, he shall -
...
(b) by interlocutor written on the record copy remit the
convicted person
to the High Court for sentence; and
(c) append to the interlocutor a note of his reasons for the
remit,
... ".
[3] In presenting
the appeal Mr. Taylor, solicitor advocate, argued firstly that the sentence was
incompetent. In the course of sentencing
the sheriff had said that he considered that the offence to which the appellant
had pled guilty merited a custodial sentence of 6 years. He discounted that period to one of 5 years imprisonment
to take account of the appellant's plea of guilty at the trial diet. While there had been no breach of section
3(3), part of the sheriff's reasoning had involved him in making an assessment
of the appropriate sentence at a period in excess of 5 years. In these circumstances the question of
sentence was appropriate for the High Court and in terms of section 195(1) the
sheriff was obliged to remit the appellant to that court for sentence. In cases to which the guidelines set out in Du Plooy v H.M. Advocate applied the starting point in the determination of a
sentence of 5 years could be as high as 71/2 years. In such cases it was clear that the question
of sentence was a matter which should be considered by the High Court.
[4] Mr. Taylor
argued, secondly, that the sentence was excessive. Although it was accepted that the appellant
had committed an appalling crime and that a period of imprisonment consecutive
to his present sentence was appropriate, having regard to the length of that
sentence, a sentence of 5 years was too long.
The injuries suffered by the complainer were not significant and the
disapproval of the court would have been adequately conveyed by a consecutive
sentence of shorter duration.
[5] In response
to the argument on competency the advocate depute submitted that the sentence
of 5 years imprisonment was within the sheriff's sentencing powers in terms of
section 3(3). The restriction on the
sheriff's powers applied only to the period of imprisonment ultimately fixed
and not to the train of reasoning used to arrive at it. Reference was made to the case of Douglas v H.M. Advocate
1997 S.C.C.R. 671 in which the sheriff imposed the then maximum sentence of 3
years but did not backdate the sentence.
Instead, he took the period spent by the appellant in custody into
account in deciding not to remit him to the High Court for sentence. The appeal against the sentence had been
refused and the sheriff's approach had been endorsed. The court should take a similar view of the
present case.
[6] In our
opinion the restriction imposed by section 3(3) falls to be applied to the
sentence ultimately fixed by the sheriff.
The argument presented on behalf of the appellant seems to us to proceed
upon a misunderstanding of section 195(1).
On Mr. Taylor's argument, even although the sheriff had held that a
sentence which he could competently impose was adequate,
it was nevertheless for this court to consider whether the question of sentence
was appropriate for the High Court. In
our view, the proper construction of the subsection is that the requirement on
the sheriff to remit only arises when he holds that any competent sentence
which he can impose is inadequate so that the question of sentence is
appropriate for the High Court. In other
words, the decision as to whether the question of sentence is appropriate for
the High Court is a matter for the sheriff, just as is the decision as to
whether any competent sentence which he can impose is inadequate. Accordingly, when the sheriff holds that the
sentence that he can impose is adequate, it necessarily follows that he is
holding that the question of sentence is not appropriate for the High
Court. In those circumstances there is
no question of a remit, and it is not for this court to consider whether the
question of sentence was appropriate for the High Court. The route by which the sheriff reaches the
ultimate sentence is not restricted by section 195(1).
[7] Turning to
the question of whether the sentence imposed was excessive, we have no
hesitation in concluding that it was not.
The appellant has an appalling record.
In 1999 he was sentenced to 5 years detention for assault to severe
injury. The extended sentence of 12
years imposed in September 2005 was in respect of a charge of attempted
murder. The crime in the present case
was brutal, distasteful and degrading.
The appeal is refused.
