Gordon Loughlin v. Her Majesty’s Advocate [2017] HCJAC 81

Note of appeal against sentence:- On 19 July 2017, at Glasgow Sheriff Court, the appellant pled guilty by accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a charge of theft of a motor vehicle, a charge of resetting a different motor vehicle, a charge of dangerous driving (contrary to section 2 of the Road Traffic Act 1988), a charge failing to stop the motor vehicle when required to do so by a police officer (contrary to section 170 of the Road Traffic Act 1988), driving whilst disqualified (contrary to section 103 of the Road Traffic Act 1988) and driving without a valid policy of insurance (contrary to section 143 of the Road Traffic Act 1988). The offences were committed whilst the appellant was subject to two bail orders. The appellant was subsequently admonished in relation to charges 3 and 6 and sentenced to 26 months imprisonment, reduced from 28 months to reflect the period he had spent on remand. The starting point had been 42 months, however, the sheriff allowed the maximum discount on account of the plea of guilty. In addition, the appellant was disqualified from driving and he was also made the subject of a Supervised Release Order in terms of section 209 of the Criminal Procedure (Scotland) Act 1995 for a period of 12 months. The sheriff ordered that the sentence of imprisonment imposed was to commence upon expiry of all other periods of imprisonment which the appellant was subject to at the time of imposition of the sentence. The appellant appealed against the part of his sentence which related to the imposition of the SRO. It was submitted on behalf of the appellant that at the time of the imposition of the sentence the appellant was serving a term of imprisonment of 35 months and 9 days. Section 27(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 provides that such sentences passed at different times will be treated as a single term and on adding the sentence of 26 months to the existing sentence the appellant fell to be treated as someone who was serving a single term of 5 years, 1 month and 9 days, which, in turn, resulted in him being considered to be a long-term prisoner within the meaning of Part 1 of the 1993 Act. Section 209 (4)(c) of the 1995 Act provides:- “(4) A supervised release order – (c) shall have no effect during any period in which the person is subject to licence under Part I of the said Act of 1993.” Section 209 (7) of the 1995 Act provides:- “(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.” It was submitted on the appellant’s behalf that as a long term prisoner he would be eligible to apply for release on parole licence after serving one half of his sentence or, if he was unsuccessful, he would be entitled to be released on licence as soon as he had only 6 months of his sentence left to serve. In either of these situations 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 supervised release order having any effect after the expiry of either licence period and, as such, the SRO was incompetently imposed by the sheriff. On behalf of the Crown it was 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, however, the remaining 6 months of the supervised release order would be available on the expiry of this licence. Here the court allowed the appeal and noted that the sentencing sheriff had failed to have regard to section 209(7)(b) of the 1995 Act which provides 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.” Given that the full period of imprisonment imposed on the appellant would elapse at the end of any licence period to which he might be subject the imposition of the SRO was incompetent and that part of the appellant’s sentence was quashed.