Andrew McCaw v. Her Majesty’s Advocate [2019] HCJAC 94

Note of appeal against sentence:- On 10 May 2019, at a continued preliminary hearing at Glasgow High Court, the appellant pled guilty to a charge of aggravated assault perpetrated against  his former partner aggravated in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016. The appellant was subject to an unexpired portion of a previous sentence when he committed the present offence. He had been released on licence on 4 September 2018. The time between the present offence and the expiry of the appellant’s licence was 117 days. The sentencing judge made a return order under section 16 of the 1993 Act of 117 days which was to be served before the sentence for the new offence. The sentencing judge imposed a sentence of 3 years imprisonment, 3 months of which was attributable to the aggravation. The sentence was to run from 17 December 2018 when the appellant was first remanded in custody for the new offence. The appellant appealed against the sentence imposed it being contended that the correct approach in relation to section 16 orders was to take account of the period spent on remand when imposing the sentence for the new offence which involved a deduction reflecting the length of sentence which would result in the period of remand being served. In the present case if that had been done and the period of remand between 17 December 2018 and 10 May 2019 were taken into account, the sentence would be reduced by a period of some 10 months. It was submitted that the correct order in determining the appropriate sentence was:- (1) to determine the headline sentence, without taking into account any period spent on remand; (2) to discount that sentence in terms of section 196 of the 1995 Act; and (3) to take into account the period on remand. It was submitted that in cases where there were co-accused, issues of comparative justice would be appropriately addressed by this approach. It was submitted the  appropriate sentence in the present case and the one which would properly reflect the sentencing judge’s intentions, would have been 17 months imprisonment to be served following completion of the section 16 period of 117 days. The Crown agreed with the submissions made on behalf of the appellant. Two issues arose in the appeal:- (1) 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 offence; and (2) 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. Here the court considered the statutory provisions relating to offences committed by those subject to unexpired portions. The court noted that it was accepted that a sentence to be served after the imposition of a section 16 order could not be backdated to the start of the remand for that new offence and, rather, that period requires to be taken into account in selecting the appropriate sentence for the new offence so in the present case 10 months requires to be deducted from the sentence imposed. The court also noted that to ensure fairness in sentencing where one accused has been remanded in custody and one has not then it is necessary to apply any discount under section 196 prior to taking into account the period spent on remand resulting in the sentence of 27 months being quashed and a sentence of 17 months substituted with that sentence to start  following the completion of the sentence of 117 days.