Simon Stuart v. Her Majesty's Advocate [2010] HCJAC 34

Criminal Note of Appeal Against Sentence:- On 21 October 2004 the appellant was remitted to the High Court for sentencing for a serious assault and received an extended sentence of 9 years (with a custodial part of 6 years). In October 2008 the appellant was released on licence. On 3 November 2008 the appellant was granted bail at Glasgow District Court in relation to a charge of theft of a car and on 8 December 2008 he was alleged to have committed new offences, namely having with him in a public place an offensive weapon (a baseball bat) and assaulting a police officer by striking him with the baseball bat, both offences committed while on bail. The appellant was recalled by the Scottish Ministers on 22 December 2008 in terms of section 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. On 9 March 2009 the appellant pled guilty to the new offences at a first diet at Glasgow Sheriff Court. The sheriff sentenced the appellant in respect of the new offences without considering whether to remit the case to the High Court in terms of section 16. The sheriff imposed a sentence of 24 months in relation to the offensive weapon, with a consecutive sentence of 12 months in respect of the assault, which was to be served consecutively to the sentence which the appellant was currently serving. Given the terms of section 204A of the Criminal Procedure (Scotland) Act 1995 and the fact that the appellant had been recalled in terms of section 17 of the 1993 it was not in dispute that it was incompetent for the sheriff to impose a sentence to run consecutively to the sentence which the appellant was currently serving. Further, it was not in dispute that the sheriff should have considered whether to remit the appellant's case to the High Court for its consideration of the possible imposition of a section 16 return order.