Alexander McKinlay v. Her Majesty’s Advocate [2019] HCJAC 75

Note of appeal against sentence:- The appellant was indicted and went to trial at Edinburgh High Court in relation to two charges:- (1) a charge of rape contrary to section 1 of the Sexual Offences (Scotland) Act 2009; and (2) failing to attend at a Preliminary Hearing on 17 August 2018 contrary to section 102A(1)(a) of the Criminal Procedure (Scotland) Act 1995. The appellant was acquitted of the substantive charge following the trial, however, the jury convicted the appellant of charge 2. The appellant was sentenced to 3 years imprisonment. The appellant appealed against his sentence on the ground that the sentence was excessive. The circumstances were that that the appellant was in Ibiza at the time of the Preliminary Hearing. He had made no contact with his solicitor and was uncontactable because he had put a Spanish SIM card in his mobile phone. The appellant was subsequently arrested on a European Arrest Warrant on 16 January 2019 and extradited and appeared at the High Court on 31 January 2019, when he was remanded in custody. The sentencing judge reported to the court that his failure to appear at the Preliminary Hearing had delayed the trial and caused considerable public expense in the extradition process and the delay in the proceedings generally. The appellant also had a lengthy schedule of previous convictions albeit at summary level and had breached various court orders including a breach of a Community Payback Order. The court considered that the sentence of 3 years imprisonment was excessive. The court noted that it was a Preliminary Hearing rather than a trial diet which the appellant had failed to appear at. Notwithstanding the previous convictions and breaches of court orders, together with the costs incurred by the extradition process, the court considered that the sentence was excessive and quashed the sentence of 3 years and substituted a period of 18 months imprisonment.