[2006] HCJAC 58

Appeal No: XJ237/06

OPINION OF THE COURT

delivered by LORD MACFADYEN

NOTE OF APPEAL AGAINST

SENTENCE

JAROSLAW WITOLD WERESZCZYNSKI

Appellant;

against

PROCURATOR FISCAL, Dundee

Respondent:

_______

Act: Shead; Wilson McLeod

Alt: Galbraith, A.D.; Crown Agent

18 July 2006

Introduction

[1] This appeal is concerned with a sentence of three months imprisonment imposed on 14 February 2006 by the sheriff at Dundee in respect of an admitted breach of a probation order.

Procedural History

[2 ] The appellant first appeared in court in Arbroath on 3 May 2005 charged with assault. He was remanded in custody. On 23 May he pled guilty of the charge subject to one deletion. The charge to which he pled guilty was that on 1 May 2005 he assaulted a young woman:

"and did repeatedly slap and punch her on the face, seize her by the shoulders pinning her to a bed, follow her to the sitting room of [the] house and repeatedly punch her on the body and knock her to the ground all to her injury".

[3 ] On 23 May and again on 9 June the court adjourned the diet for the purpose of obtaining reports. On these occasions the appellant was again remanded in custody. On 29 June 2005 the appellant was made the subject of a probation order for one year.

[4 ] On 17 January 2006 before the sheriff at Dundee the appellant admitted breach of the probation order. The court adjourned the diet until 14 February for the purpose of obtaining reports. On this occasion the appellant was ordained to appear. On 14 February the sheriff sentenced the appellant to three months imprisonment, to commence from that date. The appellant has appealed against that sentence.

The grounds of appeal

[5 ] The grounds of appeal lodged on the appellant's behalf make a number of points, including the following one:

	"3.	In passing sentence it is submitted the Sheriff failed to attach adequate weight to the following:-
		(ii)	The appellant has spent a substantial period of time in custody awaiting trial on the original complaint. He has been remanded in custody between 3 May 2005 and 29 June 2005, a period of some 57 days. He had accordingly already served the equivalent of a sentence just short of four months imprisonment. This being the Appellant's first conviction for assault, he has already served a sentence in excess of the maximum which could have been imposed."

[6 ] Leave to appeal was granted under section 107(1) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). The judge, in granting leave, made the following comment under section 107(1)(a):

"Granted on the question whether it was appropriate to take into account the period spent on remand prior to the imposition of a probation order."

The sheriff's report

[7 ] In explaining his selection of a sentence of three months imprisonment the sheriff said:

"It did not appear to me that there was any viable alternative to a custodial disposal. ... [W]hat I was dealing with was a failure to comply with requirements imposed on a probation order and what I could do was therefore regulated by the provisions of section 232 of the 1995 Act. The choices are the imposition of a fine up to level 3, which seemed inapposite, sentencing the offender for the offence for which the order was made, vary [sic] the probation order or revoke [sic] the probation order and substitute a community service order.

I can find no authoritative guidance on the law of sentencing when an offender has failed to adhere to the requirements of a probation order, beyond the statutory provisions. S. 232 itself is silent upon any requirement to take account of time spent in custody or time on the order. ... I accept that the appellant spent 56 days in custody prior to the order being made but patently that was something which the sheriff had regard to in deciding to place him on probation. The question to which I can find no immediate answer in guidance is whether by placing him on probation account was then taken of that period in custody and need not be taken again on the breach of the order. I consider that must be so otherwise there is no effective sanction in relation to an offender who has spent time on remand and is then placed on any form of non-custodial order which permits 'sentencing of new' when an order has been breached.

The net effect of that was that when I came to sentence the appellant following upon the breach of probation I took no account of his earlier period on remand. While I do not accept that the appellant had demonstrated any enthusiasm for compliance with the probation order, I can see that there is an argument that that has produced a result which is not entirely fair to the appellant."

The legislation

[8 ] As the sheriff rightly identified, he was called upon to exercise the jurisdiction conferred upon him by section 232(2) of the 1995 Act, which provides:

	"(2)	If it is proved to the satisfaction of the court before which the probationer appears or is brought in pursuance of subsection (1) above that he has failed to comply with a requirement of the probation order, the court may ―
		(b)	sentence the offender for the offence for which the order was made ...".

The other courses available to the sheriff in terms of section 232(2) were (a) to impose a fine not exceeding level 3 on the standard scale, (c) to vary the requirements of the probation order, and (d) to make a community service order.

[9 ] As the sheriff rightly notes, section 232 says nothing about taking into account time spent on remand. That is, however, dealt with in section 210, which provides inter alia as follows:

"(1)	A court, in passing a sentence of imprisonment or detention on a person for an offence, shall ―
	(a)	in determining the period of imprisonment or detention, have regard to any period of time spent in custody by the person on remand awaiting trial or sentence ...;
	(b)	specify the date of commencement of the sentence; and
	(c)	if the person ―
		(i)	has spent a period of time in custody on remand awaiting trial or sentence;
		and the date specified under paragraph (b) above is not earlier than the date on which sentence was passed, state its reasons for not specifying an earlier date.

The appellant's submission

[10 ] Mr Shead, who appeared for the appellant, accepted that the matter of time spent in custody on remand had not been emphasised in the submissions made to the sheriff. He submitted, however, that if the appellant had been given a custodial sentence as the original disposal of his case, the time spent on remand would have been taken into account and the sentence would have been backdated accordingly. The sheriff dealing with the breach of probation had elected to deal with it in terms of section 232(2)(b) by sentencing the appellant for the original offence by imposing a sentence of imprisonment. Since this was the appellant's first conviction for an offence inferring personal violence, the maximum sentence was one of three months imprisonment (section 5(2)(d) of the 1995 Act). The sheriff should have had regard to the time spent on remand, and should accordingly have realised that the appellant had already spent in custody a period in excess of the equivalent of three months imprisonment (when account is taken of the effect of section 1(1) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act)). The appropriate course would therefore have been, on that account, to admonish the appellant.

Discussion

[11 ] The proper starting point for consideration of the course taken by the sheriff is section 232. It enables the sheriff, on finding that there has been a failure to comply with a requirement of a probation order, to take one of the courses outlined in section 232(2)(a) to (d). The sheriff elected to proceed under section 232(2)(b), and it is not suggested that he was not entitled to do so. It is to be noted, however, that in proceeding under section 232(2)(b), the sheriff was sentencing the offender for the original offence. He was not imposing a punishment for the failure to comply with the requirements of the probation order. That being so, if the sheriff was passing a sentence of imprisonment, section 210(1) applied. The sheriff was "passing a sentence of imprisonment ... on a person for an offence". He was therefore obliged, in determining the period of imprisonment, to "have regard to" any period of time spent in custody on remand awaiting trial or sentence.

[12 ] It follows that the sheriff misdirected himself in taking no account of the period which the appellant had spent on remand awaiting trial and sentence. It is therefore for us to reconsider the sentence which the sheriff imposed. Like him, we are obliged by section 210(1) to "have regard to" the period spent on remand awaiting trial or sentence. We do not suggest that the obligation to "have regard" to the time spent on remand means that that time must necessarily be deducted in calculating the sentence to be imposed under section 232(2)(b). Given, however, that the sentence to be selected under section 232(2)(b) is to be a sentence "for the offence for which the [probation] order was made", we do not consider that it should properly include any element of punishment for the breach of probation as such. We therefore find it difficult to see, in the circumstances of the present case, any basis for imposing a sentence of imprisonment of greater length than would have been imposed if imprisonment had been the sentence originally selected. In the ordinary way under section 210, a sentence of imprisonment would be backdated to take account of time spent in custody on remand. If that approach is adopted in the present case, and if account is taken of the applicable early release provisions (section 1(1) of the 1993 Act), the 56 or 57 days spent by the appellant on remand exceeds the period which he would have spent in custody if the maximum sentence available under section 5(2)(d) of the 1995 Act had been imposed in the first instance. In these circumstances, we consider that the only proper way in which to "have regard to" the time spent in custody on remand, in the circumstances of the present case, is to treat that time as part of the maximum available prison sentence. That being so, we are persuaded that Mr Shead was right in his submission that the appropriate course to take is to regard the appellant as having served the equivalent of a sentence of more than 3 months imprisonment, and therefore to restrict the sentence imposed under section 232(2)(b) to one of admonition.

Result

[13 ] We accordingly allow the appeal, quash the sentence of three months imprisonment, and substitute an admonition.

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Wereszczynski v. Procurator Fiscal, Dundee [2006] ScotHC HCJAC_58 (18 July 2006) URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_58.html Cite as: [2006] HCJAC 58, [2006] ScotHC HCJAC_58

Scottish High Court of Justiciary Decisons

[2006] HCJAC 58

Appeal No: XJ237/06

OPINION OF THE COURT

Introduction