Jamie McNeely v. Her Majesty’s Advocate [2015] HCJAC 45

Note of appeal against sentence:- On 12 January 2015, at Glasgow Sheriff Court, the appellant was convicted after trial on indictment of a charge of assault to severe injury, permanent disfigurement and permanent impairment. The appellant was sentenced to 4 years imprisonment and the imposition of a Supervised Release Order of 12 months on his release. The sheriff made that sentence consecutive to a return order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in relation to 147 unexpired days between the date of the commission of the new offence and the expiry of the period of his licence on 31 October 2014. Unknown to the sheriff at the time of the imposition of the sentence and the section 16 order was that the appellant’s licence had been revoked on 13 August 2014 under section 17 of the 1993 Act. The appellant appealed against his sentence. It was submitted on behalf of the appellant that:- (1) there had been an element of double counting with the imposition of the section 16 order given there had been an earlier recall of his licence; and (2) the imposition of the Supervised Release Order was incompetent by virtue of section 209 of the Criminal Procedure (Scotland) Act 1995 which requires that a Criminal Justice Social Work Report is obtained. Here the court allowed the appeal in so far as the imposition of the SRO was concerned, the sheriff himself having acknowledged in his report to the court that it was incompetent so to do. In relation to the issue of the section 16 order and the section 17 recall the court considered that the imposition of the unexpired days was competent as section 16 is punitive and section 17 is protective and it was a matter for the discretion of the sentencing sheriff/judge to decide whether to impose such an order. The court observed that the prison sentence imposed could not be described as excessive given the circumstances of the case, namely, that the appellant had attacked the complainer, who was a stranger to him, with a hatchet in a public street during daylight, causing significant injuries to him. The court took the view that given the nature of the assault and that a period of post release supervision was appropriate, the whole sentence was quashed and an extended sentence of 6 years was imposed, of which 4 years represented the custodial part.