Alan Robert Baker v. Her Majesty’s Advocate [2019] HCJAC 17

Note of appeal against sentence following upon a reference from the Scottish Criminal Cases Review Commission:- On 1 August 2017 the appellant pled guilty to a summary complaint containing a charge libelling a contravention of section 38(1) of the Criminal Justice & Licensing (Scotland) Act 2010. On 7 September 2017, following two deferments, the complaint called along with an indictment relating to a conviction for assault and attempted robbery in a shop involving the appellant brandishing a knife at an employee there. In relation to the indictment the sheriff imposed a sentence of 3 years and 6 months imprisonment with a 12 month supervised released order whilst on the summary complaint he imposed a sentence of 6 months, to run consecutively to the first sentence. Leave to appeal against conviction and sentence in relation to the indictment matter was refused, however, a reference was made by the SCCRC in relation to an issue of the competency of a supervised release order given that the cumulative effect of the sentences imposed resulted in a total sentence in excess of 4 years. It was submitted that in terms of section 209(1) of the Criminal Procedure (Scotland) Act 1995 an SRO can only be made where an accused has been sentenced to a period of imprisonment of less than 4 years. In the present case by virtue of section 27(5)(a) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 the sentences passed on the appellant constituted a single term of imprisonment of 4 years and, as such, the imposition of an SRO was incompetent. In addition, by becoming a long-term prisoner by the sheriff single terming the sentences the appellant would be subject to licence conditions on his release and by virtue of section 209(4) of the 1995 Act an SRO will have no effect during any period spent by an offender on licence and the licence period would come to an end when the single term sentence had elapsed and in terms of section 209(7)(b) of the 1995 Act no part of the relevant period of the SRO is to be later than the date on which the entire term of imprisonment specified in the sentence has elapsed so, again, the imposition of an SRO was incompetent. It was noted in the reference that the sentencing sheriff’s intention was for the appellant to be subject to post release supervision. As such, if the SRO element of the sentence was to be revoked the effect of the appellant being a long-term prisoner would mean that he would be subject to licence conditions which would be imposed upon his release. Here the court agreed with the SCCRC in that an SRO may only be imposed where the offender is to be categorised as a short term prisoner and would be released unconditionally as soon as he had served half the custodial sentence imposed unless the court determined that an SRO required to be made for the protection of the public (to a maximum of 12 months). The court observed that section 209 makes clear that an SRO shall have no effect during any period in which the person is subject to a licence. The court agreed that, given the appellant in being sentenced to 4 years became a long-term prisoner, it was incompetent for the sheriff to impose an SRO. Here the court agreed with the SCCRC and revoked the SRO resulting in the appellant still being subject to a period of post release supervision as a result of the licence conditions which would be imposed upon his release.