Conor Clark v. Her Majesty’s Advocate [2022] HCJAC 32

Note of appeal against sentence:- On 16 May 2022 the appellant was sentenced to a period of 8 years imprisonment for offences of assault, robbery and theft by housebreaking, backdated to 14 April 2022 when the appellant pled guilty on day 8 of the trial. The sentencing judge selected a headline sentence of 9 years which was reduced by 2 months to reflect the timing of the plea. In addition, the appellant spent two separate periods on remand (from 7 October 2019 to 19 August 2020 and 14 April 2022 to 16 May 2022) and the trial judge further discounted the headline sentence by 10 months (316 days) to reflect the first periods on remand in terms of section 210 of the 1995 Act and the second period on remand was taken into account by backdating the sentence to 14 April 2022. Having regard to the changes effected by the Prisoners (Control of Release) (Scotland) Act 2015 to the early release provisions of the Prisoners and Criminal Proceedings (Scotland) Act 1993 in respect of long-term prisoners, introduced with effect from 1 February 2016, and the recent case of HMA v O’Doherty 2022 HCJAC 31 which discussed the issue, it was submitted on behalf of the appellant that the trial judge should have discounted by double the period spent on remand. Here the court allowed the appeal, the issue having been determined in the case of O’Doherty. The court stated that the trial judge, having determined that the appellant was entitled to credit for the entire time spent on remand, should have backdated by the relevant period, namely to 31 May 2021. As such, the court allowed the appeal and imposed a sentence of 8 years and 10 months backdated to 31 May 2021.