John Anderson v. Her Majesty’s Advocate [2021] HCJAC 18

Note of appeal against sentence:- The appellant pled guilty at a first diet at Edinburgh Sheriff Court to a number of charges:- (1) shipbreaking with intent to steal; (2) possession of a knife in a public place contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995; and (3) and (4) two breaches of section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995  by failing to comply with a curfew condition contained in the bail order made when he was liberated in relation to the first two charges. The appellant was sentenced to 15 months imprisonment (discounted from 18 months) in respect of each of the charges of shipbreaking and possession of a knife to be served concurrently with each other. In relation to the first section 27(1)(b) charge the sheriff considered that the appropriate headline sentence would have been 90 days imprisonment discounted to 75 days and in relation to the second section 27(1)(b) charge the sheriff considered that the appropriate headline sentence would have been 120 days imprisonment discounted to 100 days, however, given that the appellant had been remanded in custody since 18 August 2020 he considered that the appropriate way to reflect the period spent on remand, between 18 August and 16 December, was to admonish the appellant on those two charges. As such, the sentences for shipbreaking and possession of a knife were not backdated. The appellant appealed against the sentence imposed it being contended the sentence was excessive. It was submitted on behalf of the appellant that the imposition of custodial sentences for shipbreaking and possession of a knife was inappropriate given there had been a significant gap in the appellant’s record of offending. Alternatively, it was submitted that the overall length of the sentences was excessive in the circumstances. The court considered that, in light of the appellant’s lengthy record of previous offending which included numerous offences of dishonesty and a previous conviction for an offence under section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, the sheriff was entitled to select the headline sentence he had in relation to the shipbreaking and possession of a knife charges. It was further submitted on behalf of the appellant that the discount allowed was insufficient. Again, the court rejected the argument advanced on behalf of the appellant stating that the discount selected by the sheriff was a matter for his discretion and ought not be interfered with in the circumstances. Finally, it was submitted on behalf of the appellant that the sheriff erred in the approach he took to the question of backdating as the sheriff had taken the view that he could not backdate the sentences for the shipbreaking and possession of a knife charges as the appellant had been on bail for them throughout the proceedings. It was submitted that the period spent on remand was equivalent to 242 days imprisonment, however, the appellant had received credit for only 175 days. It was further submitted that in terms of section 210(1)(a) of the 1995 Act the court requires to have regard inter alia to any period of time spent in custody by the person on remand awaiting trial or sentence. Here the court considered that the sheriff could have taken account when he came to impose the sentences on the shipbreaking/knife charges the whole of the period which the appellant had spent on remand notwithstanding that he had been remanded throughout only on the other charges and, therefore, he was entitled to have the whole of the period he had spent on remand taken into account. Here the court allowed the appeal in a way which was considered to best reflect the sheriff’s intention and quashed the sentences imposed on the shipbreaking and possession of a knife charges and substituted for them a single cumulo sentence of 15 months imprisonment backdated to 13 November 2020 (the date 75 days after 18 August 2020 when he was first remanded).