Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2019/2019_HCJAC_94.html
Cite as: 2020 GWD 2-38, [2019] HCJAC 94, [2019] ScotHC HCJAC_94, 2020 JC 128, 2020 SLT 221

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Justice Clerk

Lord Turnbull

[2019] HCJAC 94

HCA/2019/266/XC

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST SENTENCE

ANDREW McCAW

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Mackintosh QC, Laurie; John Pryde & Co (for Bruce the Lawyers, Glasgow)

Respondent: Borthwick AD; the Crown Agent

12 December 2019

Introduction

[1] This appeal against sentence raises two issues. The first is whether, when ordering a

sentence to run consecutive to a return order made under section 16 of the Prisoner and

Criminal Proceedings (Scotland) Act 1993, the court can order that the sentence for the new

offence can be backdated to that when the prisoner was originally remanded on the new

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offence. The second, and more difficult question, is whether, when applying section 210 of

the Criminal Procedure (Scotland) Act 1995, the headline sentence should take into account

any period which has been spent on remand before the application of a discount under

section 196 of the 1995 Act. In McLeod v Her Majesty’s Advocate, unreported, High Court of

Justiciary, 13 June 2017, the court decided that the period on remand should be taken into

account in determining the headline sentence before any discount is applied. The

alternative is that the period on remand should only be considered once the discounted

sentence is determined.

Statutory provisions

[2] When a person commits an offence, having been released from prison on licence in

respect of an earlier offence, the court sentencing him for the new offence may order him to

be returned to prison for the whole or part of the period beginning on the date of the order

for his return and is equal in length to the period which begins on the date of the new

offence and the date on which the person would have served his sentence for the previous

offence in full (Prisoners and Criminal Proceedings (Scotland) Act 1993, s 16(2)(a)). The

court may order that the period of the return order should run concurrently with the new

sentence, or that it should be served before, and be followed by, the new sentence (s

16(5)(b)).

[3] Section 210(1) of the Criminal Procedure (Scotland) Act 1995 provides that, when a

court passes a sentence of imprisonment, it shall, in determining the period of that

imprisonment, have regard to any time spent in custody on remand awaiting trial or

sentence. If a person has spent time in custody, and a sentence is not backdated to the date

of remand, the court requires to specify its reasons for not doing so.

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[4] Section 196(1) of the 1995 Act provides that, in determining what sentence to pass

upon an offender who has pled guilty to an offence, the court shall take into account the

stage at which the offender “indicated his intention” to plead guilty. When the court applies

a discount for a guilty plea, it requires to specify the headline sentence or, if there is no

discount, to state why no discount was afforded (s 196(1A)).

Facts

[5] On 10 May 2019, at a continued preliminary hearing at the High Court in Glasgow,

the appellant pled guilty to a charge which libelled that:

“on 23 November 2018 at ... Wishaw you ... did assault [MC], then your partner, ...

and did repeatedly punch her on the head and repeatedly kick her on the body,

repeatedly seize her by the hair and drag her by the body, all to her injury; and it will

be proved in terms of section 1 of the Abusive Behaviour and Sexual Harm

(Scotland) Act 2016 that the aforesaid offence was aggravated by involving abuse of

your partner ...”.

[6] The appellant and the complainer had been in a relationship for about two months.

On Thursday, 22 November 2018, they had bought some alcohol and were consuming this

with two friends at the complainer’s address. At about 2.00am on 23 November, the

complainer went to bed because she felt drunk. One of the appellant’s friends left. The

complainer awoke at about 10.00am and joined the appellant and the remaining friend, who

were continuing to drink. Another friend arrived at 11.00am and all four drank alcohol.

The appellant’s two friends then began assaulting the appellant. The complainer intervened

and ejected the friends from the house. Some hours later, after some arguing, the

complainer retired to bed in an intoxicated state.

[7] At about 2.00pm, the appellant entered the bedroom. He was drunk and shouting

“You’ve embarrassed me”. An argument ensued. The complainer attacked the appellant by

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punching and pushing him. The appellant retaliated by repeatedly punching the

complainer. He seized her by the hair and dragged her from the bed. He kicked her on the

body. The complainer left the house and went to that of a neighbour at about 4.15pm. The

police arrived at about 4.45pm. The complainer’s speech was slurred, because she was still

under the influence of alcohol. She was taken to hospital suffering from tenderness to her

spine, bruising around the eyes, swelling of her right cheek and bruising to the left ear. By

the time the appellant was traced and arrested on 14 December 2018, he was back in the

company of the complainer. He denied all allegations.

Previous convictions

[8] The appellant has an extensive criminal record, including 11 convictions for assault.

Eight of these were domestically aggravated. His last conviction, which was for

housebreaking with intent to rob involving a knife, was dated 1 December 2017, when he

was sentenced to 2 years imprisonment. He was released on licence on 4 September 2018.

The time between the present offence and the expiry of the appellant’s licence was 117 days.

Sentence

[9] The sentencing judge made a return order under section 16 of the 1993 Act of

117 days. This was to be served before the sentence for the new offence. That sentence was

3 years imprisonment, of which 3 months was attributed to the aggravation. This was

ordered to run from 17 December 2018, when the appellant had been remanded in custody.

Submissions

[10] The appellant submitted that the correct approach in relation to section 16 orders

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was to take account of the period spent on remand when imposing the sentence for the new

offence (Barr v HM Advocate 1997 SCCR 506). This involved a deduction reflecting the

length of sentence which would result in the period of remand being served (Martin v HM

Advocate 2007 JC 70). If this were done and the period of remand, from 17 December 2018 to

10 May 2019, were taken into account, the sentence would be reduced by a period of some

10 months.

[11] The appropriate order in the sentencing exercise was: first, to determine the headline

sentence, without taking into account any period spent on remand; secondly, to discount

that sentence in terms of section 196 of the 1995 Act (Du Plooy v HM Advocate 2005 JC 1 and

Gemmell v HM Advocate 2012 JC 223); and, thirdly, to take into account the period on remand

(see Ghafoor v HM Advocate 2007 SCCR 342, Crighton v HM Advocate 2007 SCCR 339 and

Martin v HM Advocate 2007 JC 70 at 72). If this were not done, a problem of comparative

justice could arise in relation to co-accused. Where there were identical offenders and

offences, the offender who had pled guilty required to obtain an advantage by way of

discount in a practical sense. The appropriate sentence in this case, which would reflect the

intentions of the sentencing judge, would have been one of 17 months, to be served on

completion of the section 16 order period.

[12] The respondent essentially agreed with the submission of the appellant.

Decision

[13] It is accepted that a sentence, which is to be served after the imposition of a

section 16 order, cannot be backdated to that of remand. The period spent on remand, or

rather the length of sentence which would have resulted in that period, requires to be taken

into account in selecting the length of the new sentence. In this case, therefore, where the

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period in remand was some 5 months, 10 months would require to be deducted from the

sentence otherwise imposed.

[14] In order to achieve an equitable result in situations in which one offender has been

remanded and another has not, it is necessary to apply the relevant discount, for a plea of

guilty in terms of section 196, prior to taking into account the period of remand. In this

respect, McLeod v HM Advocate, unreported, High Court of Justiciary, 13 June 2017, must be

regarded as having been wrongly decided. The effect of this is that, instead of imposing the

sentence of 27 months, a sentence of 17 months should be substituted. No order for

backdating should be made and this sentence will start at the conclusion of the section 16

period.