APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Kingarth Lord Eassie	[2010] HCJAC 28 Appeal No: XC72/08 OPINION OF THE COURT delivered by LORD EASSIE in NOTE OF APPEAL AGAINST SENTENCE by MARTIN KYLE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: David Taylor, Solicitor-Advocate; Purdie & Co., Edinburgh

Respondent: I McSporran, A.D.; Crown Agent

11 March 2010

[1] The appellant was indicted in the sheriff court and, after trial, was convicted of three charges. The first of these was a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971, the libel being that on 22 May 2007 the appellant was concerned in the supplying of heroin at a particular address in Dundee. The second charge libelled an offence under section 23(4)(a) of that Act in respect that on the same date and at the same place he intentionally obstructed three police officers by lashing out, struggling violently and refusing to remove an object from his mouth. The third charge was one of possession, on the same date and at the same address, of cannabis resin, contrary to section 5(2) of the 1971 Act. As was averred in respect of each of the charges, all of the offences were committed while the appellant was on bail, he having been granted bail on 13 April 2007.

[2] On 16 January 2008 the presiding sheriff imposed a sentence of four years' imprisonment on the first charge (concern in the supplying of heroin) of which period he attributed six months to the fact that the offence was committed while the appellant was on bail. On the second charge (obstructing the police) the sheriff imposed a sentence of nine months' imprisonment, three months of which he attributed to the bail aggravation. The appellant was admonished in regard to the third charge. The two sentences of imprisonment were ordered to run consecutively. Accordingly the appellant was sentenced to a total period of four years and nine months; and of that period, the amount attributable to the offences having been committed while he was on bail came to a total of nine months.

[3] The appellant duly lodged a note of appeal against sentence. It contained two grounds. The first was to the effect, put very shortly, that having regard to the facts disclosed by the evidence and the limited extent to which drug offences appeared in his record of previous convictions, the sentences were excessive. The second ground was to the effect that the sheriff should have imposed concurrent sentences of imprisonment and not consecutive sentences. Leave to appeal having been refused at the "first sift", the appellant appealed to the "second sift", before whom was placed an opinion by his solicitor-advocate expressing the view that the sheriff could not competently impose a total of nine months' imprisonment in respect of the bail aggravation; the maximum which he could impose was six months.

[4] Leave to appeal having been granted, on 27 June 2008 the appeal came before a bench composed of two judges who pronounced an interlocutor remitting the appeal to a bench of three judges for "determination ... of the maximum sentence competently available to a sentencer in respect of bail aggravations on a complaint/indictment containing more than one bail aggravated charge ..." and continued the appeal.

[5] In due course the appeal came before us for inter alia consideration of that matter.

[6] In presenting the appeal the solicitor-advocate for the appellant conducted a short review of the history of the legislation. As part of a wider reform of arrangements for the granting of bail pending trial effected by the Bail Etc (Scotland) Act 1980 - "the 1980 Act" - section 3(1)(b) of that Act created a statutory offence of failing (without reasonable excuse) to comply with a condition attached to the grant of bail. Since a standard condition of the grant of bail was (as now) that the accused should not commit any other offence, the committing of a crime or an offence while on bail rendered the accused liable to conviction under section 3(1)(b) of the 1980 Act and any additional penalty imposed in respect of that conviction. The maximum penalty for a contravention of section 3(1)(b) of the 1980 Act depended upon the court in which the prosecution took place - namely sixty days in the district court and three months in both the sheriff court and the High Court of Justiciary.

[7] However, in 1995 significant changes were effected to inter alia section 3 of the 1980 Act by the Criminal Justice (Scotland) Act 1995 and these changes were then incorporated into the consolidation statute, the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act". Further amendment was made by the Criminal Proceedings etc. (Reform) Scotland Act 2007. The current provision, with which this appeal is primarily concerned, is section 27 of the 1995 Act (as amended) which is in these terms:

"27.- Breach of bail conditions: offences.

(1) Subject to subsection (7) below, an accused who having been granted bail fails without reasonable excuse-

(a) to appear at the time and place appointed for any diet of which he has been given due notice or at which he is required by this Act to appear ; or

(b) to comply with any other condition imposed on bail,

shall, subject to subsection (3) below, be guilty of an offence and liable on conviction to the penalties specified in subsection (2) below.

(2) The penalties mentioned in subsection (1) above are-

(a) a fine not exceeding level 3 on the standard scale; and

(b) imprisonment for a period-

(i) where conviction is in the JP court , not exceeding 60 days; or

(ii) in any other case, not exceeding 12 months.

(3) 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-

(a) 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;

(b) any previous conviction of the accused of an offence under subsection (1)(b) above; and

(c) 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.

(4) The court shall not, under subsection (3) above, have regard to the fact that the subsequent offence was committed while the accused was on bail unless that fact is libelled in the indictment or, as the case may be, specified in the complaint.

(4A) The fact that the subsequent offence was committed while the accused was on bail shall, unless challenged-

(a) in the case of proceedings on indictment, by giving notice of a preliminary objection in accordance with section 71(2) or 72(6)(b)(i) of this Act; or

(b) in summary proceedings, by preliminary objection before his plea is recorded,

be held as admitted.

(4B) In any proceedings in relation to an offence under subsection (1) above or subsection (7) below, the fact that (as the case may be) an accused-

(a) was on bail;

(b) was subject to any particular condition of bail;

(c) failed to appear at a diet; or

(d) was given due notice of a diet,

shall, unless challenged in the manner described in paragraph (a) or (b) of subsection (4A) above, be held as admitted.

(5) 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-

(a) where it is a fine, by the amount for the time being equivalent to level 3 on the standard scale; and

(b) where it is a period of imprisonment-

(i) as respects a conviction in the High Court or the sheriff court, by 6 months; and

(ii) as respects a conviction in the JP court , by 60 days,

notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.

(6) Where the sentence or disposal in respect of the subsequent offence is, by virtue of subsection (3) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.

(6A) Where, despite the requirement to have regard to the matters specified in paragraphs (a) to (c) of subsection (3) above, the sentence or disposal in respect of the subsequent offence is not different from that which the court would have imposed but for that subsection, the court shall state (as appropriate, by reference to those matters) the reasons for there being no difference.

(7) An accused who having been granted bail in relation to solemn proceedings fails without reasonable excuse to appear at the time and place appointed for any diet of which he has been given due notice (where such diet is in respect of solemn proceedings) shall be guilty of an offence and liable on conviction on indictment to the following penalties-

(a) a fine; and

(b) imprisonment for a period not exceeding 5 years.

(8) At any time before the trial of an accused under solemn procedure for the original offence, it shall be competent-

(a) to amend the indictment to include an additional charge of an offence under this section;

(b) to include in the list of witnesses or productions relating to the original offence, witnesses or productions relating to the offence under this section.

(9) A penalty under subsection (2) or (7) above shall be imposed in addition to any other penalty which it is competent for the court to impose, notwithstanding that the total of penalties imposed may exceed the maximum penalty which it is competent to impose in respect of the original offence.

(9A) The reference in subsection (9) above to a penalty being imposed in addition to another penalty means, in the case of sentences of imprisonment or detention-

(a) where the sentences are imposed at the same time (whether or not in relation to the same complaint or indictment), framing the sentences so that they have effect consecutively;

(b) where the sentences are imposed at different times, framing the sentence imposed later so that (if the earlier sentence has not been served) the later sentence has effect consecutive to the earlier sentence.

(9B) Subsection (9A)(b) above is subject to section 204A of this Act.

(10) A court which finds an accused guilty of an offence under this section may remit the accused for sentence in respect of that offence to any court which is considering the original offence.

(11) In this section 'the original offence' means the offence with which the accused was charged when he was granted bail or an offence charged in the same proceedings as that offence."

We have emphasised, in bold print, sub-sections (3) and (5) these being the principal sub-sections with which the appeal is concerned.

[8] Having reviewed the legislative history, the solicitor-advocate for the appellant then referred the court to a number of judicial decisions in this general field. These were - Connal v Crowe 1996 S.C.C.R. 716, Hamilton v Heywood 1998 SLT 133; 1997 S.C.C.R 783.; Nicolson v Lees 1996 J.C. 173; 1996 S.L.T. 706; 1996 S.C.C.R. 551; Wilson v HM Advocate 1997 S.C.C.R. 674; Jackson v McFadyen 2001 S.C.C.R. 224; and Penman v Bott 2006 JC 183; 2006 SCCR 277. The submission which the solicitor-advocate for the appellant advanced, in short, was that the maximum period of imprisonment which could be imposed in respect of a bail aggravation was six months. As we understood it, this proposition he derived in particular from the Opinion of the Court in Jackson v McFadyen and some further support was also sought in the Opinion of the Court delivered by Lord Sutherland in Hamilton v Heywood. Additionally, having referred to the effect of section 27(5) of the 1995 Act on the general limit to the sheriff's sentencing powers in summary proceedings Mr Taylor submitted, that in any one criminal process the maximum amount attributable to bail aggravations was six months irrespective of the number of aggravated charges; in other words the six months' extension to the sentencer's maximum powers was the maximum available to the sentencer for distribution over the totality of the aggravated charges. Accordingly the selection by the sheriff in the present case of nine months for that totality was thus incompetent.

[9] For his part the Advocate depute submitted that section 27(5) increased by six months the maximum sentence on each charge on the complaint or indictment. Taking up a matter upon which the solicitor-advocate for the appellant had touched in the course of the discussion, the Advocate depute initially submitted that section 27(5) could not apply to any common law offence, since such an offence lacked a specified maximum sentence, other than life imprisonment. However, on his recognising that for some statutory offences, the statute in question prescribed a maximum imprisonment of life, we understood the Advocate depute to depart from that submission, expressing the view however that the legislation was somewhat unfortunately framed.

[10] We share to some extent the sentiment expressed by both the solicitor-advocate for the appellant and the Advocate depute that the drafting of section 27 of the 1995 Act may not be ideal. However, we think it plain from the terms of sub-section (3) of section 27 that each offence on a complaint or indictment committed by an offender while on bail is to be treated as aggravated on that account, thereby rendering the offender liable to an additional element in the penalty which he receives. While the terms of the legislation do not state expressly the maximum amount of that additional element in respect of any one charge, the implication from the terms of sub-section (5) of section 27 is that, in the case of a High Court or sheriff court conviction, that amount is six months as respects each of the aggravated charges. That accords with the analysis of the legislative provisions which was put forward by counsel for the complainer in the bill of suspension considered by the court in Penman v Bott and which is set out in paragraphs [6] to [9] of the Opinion of the Court. That analysis was supported by the Crown and was endorsed by the court. So, absent the operation of any general limit on the sentencer's powers, we see nothing in the statutory provisions contained in section 27 of the 1995 Act to prevent the sentencer from imposing an additional element of six months' imprisonment on each of two or more aggravated charges even if he intends to make the sentences consecutive. Put in other words, each charge is regarded as being aggravated; and in respect of that aggravation the sentencer may, in appropriate circumstances, impose an additional penalty of six months in respect of that aggravation.

[11] However, as the analysis put forward by counsel in Penman v Bott also embraced, account has to be taken of any general limit to the sentencer's powers. The proceedings in Penman v Bott were, of course, summary proceedings involving a second or subsequent offence of dishonesty and the maximum sentence available on the complaint in that case, ignoring any bail aggravations, was six months - by virtue of section 5(3)(a) of the 1995 Act, as that provision was then couched. All of the charges to which the complainer, Mr Penman, pled guilty were crimes of theft committed while on bail. The practical effect of section 27(5) of the 1995 Act was to increase that general sentencing limit by a further six months bringing it up to twelve months. The complainer, Mr Penman, had been sentenced to a total of eighteen months. In passing the bill, the court at paragraph [14] of its opinion, delivered by Lord McFadyen, put matters concisely thus:

"On the basis of the analysis set out in paragraphs [6] to [9] above, we are of the 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 rule set out in Nicolson 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."

[12] The appellant in the present case was of course prosecuted on indictment and the total sentence imposed, including the elements attributed by the sheriff to the bail aggravations, was below the five year maximum level of the sheriff's sentencing powers in solemn proceedings set by section 3(3) of the 1995 Act, as amended. No issue thus arises in the present case of an extension of that general limit of the sheriff's sentencing power in solemn proceedings which would result from the operation of section 27(5) of the 1995 Act. And, we would add, similarly no issue such as that which arose in Jackson v McFadyen, with which the Bench in Penman v Bott expressed agreement in paragraph [15] of its Opinion, arises in this case. Put very shortly, that issue was whether in a case in which the sentencer had chosen to attribute an amount of imprisonment attributable to the bail aggravation which was less than six months, the balance of the increase in sentencing power provided for in section 27(5) could yet be utilised in the imposition of a higher sentence on the non-aggravated element of the offence. But we would observe that, in our view, the approach adopted by the court in Jackson v McFadyen, supported by the court in Penman v Bott, is consistent with the reasoning followed by the court in its recent decision in Minto v HM Advocate [2010] HCJAC 13.

[13] Accordingly, and endeavouring to summarise matters, since (a) the effect of section 27(3) and (5) was to increase the maximum sentence available on each of the first and second charges of which the appellant was convicted by six months - a matter essentially theoretical given that the sentences imposed on each of those charges did not exceed the un-increased, or non-aggravated, statutory maximum available to the sheriff on either of those charges - and (b) the sheriff's ultimate, total sentence was within his general sentencing limit in solemn proceedings as it stands unaffected by any possible increase by virtue of section 27(5), we are unable to see any basis whereon his sentence could be described as incompetent.

[14] The primary thrust and basis of this appeal against sentence, for which it was remitted to the triumvirate bench, must therefore be answered adversely to the appellant.

[15] Having thus decided that the sentence was a competent sentence, within the sheriff's sentencing powers, we now turn to the merits of his decision. It was submitted that the amount of heroin involved in this particular case was small, having a street value of £1,490; the charge was essentially confined to one day; and while it was accepted that the appellant had a very long record of offending, there were no convictions for major offences under the Misuse of Drugs Act 1971. But the principal focus of the argument for the appellant in relation to the merits of the sheriff's decision was directed to his making the sentences of imprisonment on charges 1 and 2 consecutive. The solicitor-advocate for the appellant stressed in that respect that everything had occurred at the same time, and at the same place and so, in his submission, concurrent sentences were indicated.

[15] We have carefully considered all that was said on behalf of the appellant respecting the circumstances of the first charge. But given the particular circumstances described in the sheriff's report and, particularly, the appellant's very extensive record of previous offending, we do not consider that, as an Appeal Court, we could properly interfere with the sheriff's exercise of his discretion as respects the penalty which he imposed on that charge.

[16] Turning to the second charge, while in some cases a charge of obstruction in terms of section 23(4)(a) of the Misuse of Drugs Act 1971 may be seen as an "evidential" charge, thus inviting a concurrent sentencing disposal, nothing which the solicitor-advocate for the appellant was able to say persuaded us to that view of matters in the present case. It is clear from the terms of the sheriff's report - which we do not think it necessary to rehearse in detail - that the evidence before the jury was that the appellant engaged in an extensive, deliberate and protracted attempt to obstruct the police in the execution of the search warrant granted to them, involving his violently struggling with them and lashing out and continued refusals to remove an orally concealed quantity of heroin. In these circumstances we are not persuaded that it was inappropriate for the sheriff to approach a sentencing exercise other than on the basis that the conduct of which the appellant was convicted on charge 2 was substantial, "non evidential", and additional to the offending in charge 1. We are thus unpersuaded by the contention that the fact that the respective offences occurred on the same date and at the same locus dictated the imposition of concurrent sentences. We therefore reject the principal thrust of the submission advanced by Mr Taylor as respects the merits of the decision, namely that matters should have been made concurrent.

[17] We therefore have come to the conclusion that there are no grounds upon which we may interfere with the sheriff's decision, whether on grounds of competency, or its merits. We therefore refuse the appeal.