Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2017/[2017]_HCJAC_81.html
Cite as: 2017 GWD 37-573, 2018 SCCR 19, [2017] ScotHC HCJAC_81, [2017] HCJAC 81

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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 81

HCA/2017-000513/XC

Lady Paton

Lord Turnbull

OPINION OF THE COURT

delivered by LORD TURNBULL

APPEAL AGAINST SENTENCE

GORDON LOUGHLIN

against

HER MAJESTY’S ADVOCATE

Appellant

Respondent

Appellant: A Ogg, Sol Adv; Paterson Bell Solicitors for McClure Collins Glasgow

Respondent: Harper, Sol Adv, AD; Crown Agent

31 October 2017

Introduction

[1] At the hearing of this appeal against sentence on 31 October 2017 we sustained the

appeal and quashed the supervised release order imposed by the sheriff. We indicated that

we would give our reasons in writing later and we now do so.

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[2] On 19 July 2017, at the Sheriff Court in Glasgow, the appellant pled guilty, utilising

the procedure provided for by section 76 of the Criminal Procedure (Scotland) Act 1995, to

six charges on the indictment which he faced. The charges arose out of two separate

incidents. The first charge concerned the theft of a motor vehicle on the morning of 21 May

2016. CCTV footage showed the appellant in the process of stealing the vehicle but attempts

made to trace him were unsuccessful. The vehicle was not recovered and had a value of

£11,100.

[3] Charges 2, 3, 4, 5 and 6 concerned the appellant’s reset of an Audi A5 motor vehicle

on 17 April 2017, his failing to stop the motor vehicle in various roads in Rutherglen when

required to do so by a police officer, driving the vehicle dangerously in various roads in

Rutherglen in an effort to avoid apprehension by the police, driving whilst disqualified and

driving without a valid policy of insurance. Each of these charges was committed whilst on

two separate bail orders. The appellant has a lengthy record of previous convictions

stretching back to 1997.

Sentence

[4] Having heard the Crown narration, and submissions on behalf of the appellant, the

sheriff adjourned the diet and called for a Criminal Justice Social Work Report specifically to

address the issue of whether a period of post custody supervision was justified.

[5] At that adjourned diet the sheriff admonished the appellant on charges 3 and 6 and

imposed sentences of imprisonment in respect of the remaining charges totalling 2 years and

4 months, which he then reduced by a period of 2 months to take account of the time spent

by the accused on remand to 2 years and 2 months. Had it not been for the early plea of

guilty the sheriff would have imposed a sentence of 3 years and 6 months’ imprisonment.

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[6] In addition to the sentences of imprisonment, the sheriff disqualified the appellant

from driving and made a supervised release order in terms of section 209 of the Criminal

Procedure (Scotland) Act 1995 for a period of 12 months. He ordered that the sentence of

imprisonment which he imposed was to commence upon expiry of all other periods of

imprisonment which the appellant was already subject to.

The Appeal

[7] The appellant was granted leave to appeal on a ground which challenged the

competence of imposing a supervised release order. As Ms Ogg identified, a Supervised

Release Order is an order made in terms of section 209 of the 1995 Act, the effect of which is,

that during the “relevant period”, the offender will be under the supervision of a relevant

officer of the local authority and be subject to such requirements as may be imposed by the

court, or as specified by that officer, for securing the good conduct of the offender or

lessening the possibility of his committing a further offence.

[8] In advancing her argument, Ms Ogg drew attention to the fact that by the date of the

sentencing hearing in the present case the appellant was serving a term of imprisonment of

35 months and 9 days, as an accumulation of other sentences passed on him and ordered to

run consecutively.

[9] Section 27(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993

provides:

“For the purpose of any reference, however expressed, in this Part of this Act to the

term of imprisonment or other detention to which a person has been sentenced or

which, or any part of which, he has served, consecutive terms and terms which are

wholly or partly concurrent shall be treated as a single term if –

(a) the sentences were passed at the same time; or

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(b) where the sentences were passed at different times, the person has not

been released under this Part of this Act at any time during the period

beginning with the passing of the first sentence and ending with the

passing of the last.”

[10] As a consequence of this subsection it was submitted that, after the imposition of the

present sentence, the appellant fell to be treated as an individual who was serving a single

term of 5 years, 1 month and 9 days. That single term exceeded a period of 4 years and the

appellant fell to be considered a long-term prisoner within the meaning of Part 1 of the 1993

Act.

[11] Ms Ogg then drew attention to the provisions of section 209 (4)(c) and 209 (7) of the

1995 Act, which provide as follows:

“(4) A supervised release order –

licence under Part I of the said Act of 1993.”

“(7) In this section –

‘relevant period’ means such period as may be specified in the supervised

release order, being a period –

(a) not exceeding 12 months after the date of the person's release; and

(b) no part of which is later than the date by which the entire term of

imprisonment specified in his sentence has elapsed;”

[12] As a long-term prisoner, the appellant would be eligible to apply to the Parole Board

for Scotland for release on parole licence after serving one half of his sentence. If he was

unsuccessful in doing so he would be entitled to be released on licence as soon as he had

only 6 months of his sentence left to serve. If the appellant were to be released in either of

these circumstances the relevant licence would last until the end of the whole period of the

single term sentence. Section 209(4)(c) of the 1995 Act would prevent a supervised release

order having effect during either period of licence, and section 209(7) would prevent a

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supervised release order having any effect after the expiry of either licence period. In these

circumstances Ms Ogg submitted that the sheriff had acted incompetently in imposing the

supervised release order.

[13] In his report to this court the sentencing sheriff acknowledged that the provisions of

section 27(5) of the 1993 Act had the effect that the appellant fell to be viewed as a prisoner

serving a single term of imprisonment in excess of 4 years. He considered that there was no

qualification in section 209 of the 1995 Act which prohibited the court from making a

supervised release order if an offender about to be sentenced was already serving a

sentence, and the effect of any sentence imposed would result in that offender serving a

single term of imprisonment of 4 years or more. The sheriff considered that if the appellant

was released subject to a licence period of 6 months, then the supervised release order which

he imposed, being for a period of 12 months, would take effect on the expiry of that licence

period. The sheriff did not mention the provisions of section 209(7)(b) in his report.

Crown Submissions

[14] Since the Crown had been put on notice as to the issue raised in this appeal we

invited the advocate depute to inform us of the Crown’s view on the competence of the

sentence imposed. The advocate depute acknowledged that the appellant fell to be viewed

as a long term prisoner in the circumstances identified. Initially, she appeared to support

the sheriff’s interpretation of section 209 of the 1995 Act. She submitted that the net effect

would be that section 209 subsection 4(c) would apply on the appellant’s release on licence

as a long-term prisoner, but that the remaining 6 months of the supervised release order

would be available on the expiry of this licence.

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[15] As we understood her though, she came to concede that the submissions on behalf of

the appellant were correct.

Discussion

[16] The Criminal Justice Social Work Report provided to the sheriff in the present case

noted that the previous custodial sentences served by the appellant had done little to deter

him from further offending. In light of the request to address the issue of post custody

supervision, the author of the report identified the appellant as being a suitable candidate

for a Supervised Release Order. Unfortunately, the sheriff seems to have overlooked the

terms of section 209(7)(b) of the 1995 Act which provide that the relevant period for which a

supervised release order may be imposed is defined as being a period:

“no part of which is later than the date by which the entire term of imprisonment

specified in his sentence has elapsed.”

[17] Since the entire term of imprisonment imposed on the appellant would elapse at the

end of any licence period to which he might be subject, it cannot be the case that a

supervised release order could commence at that point.

[18] In our opinion, the submissions made by Ms Ogg were well founded and we

therefore agreed that the imposition of a supervised release order was incompetent in the

appellant’s case.