Joseph Mcknight V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Philip,Lady Paton,Lord Osborne |
| Judgment Date | 28 October 2008 |
| Neutral Citation | [2008] HCJAC 62 |
| Docket Number | XC802/07 |
| Court | High Court of Justiciary |
| Date | 28 October 2008 |
| Published date | 28 October 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Osborne Lady Paton Lord Philip | [2008] HCJAC 62 Appeal No: XC802/07 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST SENTENCE by JOSEPH McKNIGHT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: O'Rourke; Hamilton Burns & Co
Respondent: McConnachie, Q.C., Advocate Depute; Crown Agent
28 October 2008
Consecutive sentence resulting in change in status from short-term to long-term prisoner[1] The Prisoners and Criminal Proceedings (Scotland) Act 1993 introduced a regime of short-term and long-term prisoners. Section 27 defines a short-term prisoner as "a person serving a sentence of imprisonment for a term of less than four years". Such a prisoner, subject to certain qualifications not applicable in this case, is automatically entitled to unconditional release after serving one-half of his sentence: sections 1 and 27 of the 1993 Act. A long-term prisoner is also defined in section 27 as "a person serving a sentence of imprisonment for a term of four years or more". A prisoner in that category is automatically entitled to release on licence after serving two-thirds of his sentence, with the possibility of earlier release on licence on the recommendation of the Parole Board after serving at least one-half of the sentence. The Board's primary concern when making such a decision is the risk presented to the public on early release: cf dicta of Lord Justice Clerk Gill in Ansari v HM Advocate, 2003 J.C. 105, at paragraph [32].
[2] Section 27(5) of the 1993 Act provides:
"For the purposes of any reference, however expressed, in this Part of this Act to the term of imprisonment or other detention to which a person has been sentenced or which, or any part of which, he has served, consecutive terms and terms which are wholly or partly concurrent shall be treated as a single term if-
(a) the sentences were passed at the same time; or
(b) where the sentences were passed at different times, the person has not
been released under this Part of this Act at any time during the period beginning with passing of the first sentence and ending with the passing of the last."
[3] A similar regime was set up in England and Wales in terms of sections 33, 35 and 51 of the Criminal Justice Act 1991. However there are differences between the English and Scottish regimes. For example, in England, in terms of section 33(1), a short-term prisoner's automatic release is only unconditional if his sentence is for a term of less than twelve months; otherwise his release is on licence. By contrast in Scotland all short-term prisoners are entitled to unconditional early release.
[4] A question arises in the present case whether the judge who imposed a 3-year consecutive sentence upon the appellant should have reduced that sentence to some extent, to reflect the fact that the prisoner's status was thereby changed from a short-term to a long-term prisoner, with a consequential effect on his date of early release. A second issue arising is whether the 3-year sentence should have been reduced to any extent to reflect an earlier 8-month sentence imposed in respect of a road traffic offence said to have arisen out of the same incident.
The appellant's circumstances[5] On 16 November 2006 the appellant (then aged 56, date of birth 26 August 1950) was driving a Nissan Primera car in Great Western Road, Glasgow. He was stopped by police officers. He was found to be driving while disqualified. He was also found to have counterfeit bank notes. In particular, he produced a white envelope containing 25 counterfeit Bank of Scotland £20 notes. He told the officers that there was another envelope in the boot. When asked whether the counterfeits were sterling, dollars, or another currency, he replied "No, I don't want to say anything else. This goes into millions." In the boot of the car, there was an envelope containing 349 counterfeit Bank of Scotland £20 notes and a quantity of counterfeit €50 notes. In the course of being interviewed, the appellant told the police that the counterfeit notes were to have been delivered to another person.
[6] On 25 January 2007, the appellant was sentenced in the sheriff court to 8 months back-dated to 17 November 2006 in respect of the offence of driving while disqualified. He duly served that sentence as a short-term prisoner, and was released in March 2007. On 13 June 2007, the appellant appeared in the sheriff court charged with housebreaking. He was remanded in custody. On 30 July 2007, the appellant appeared as one of nine accused in a five-week trial in Edinburgh High Court, in which he faced charges relating to the counterfeit notes. He appeared each day from custody. On 4 September 2007, the jury found him guilty of a contravention of section 16(1) of the Forgery and Counterfeiting Act 1981. The appellant remained in custody. On 5 September 2007 the appellant appeared in the sheriff court and pled guilty to the housebreaking charge as amended. He was sentenced to 31 months, back-dated to 13 June 2007. On 27 September 2007 the appellant appeared in the sheriff court and pled guilty to further charges of housebreaking and assault. He was sentenced to a further 4 months, to run consecutively to the 31 months previously imposed. On 2 October 2007 in the High Court case, a plea in mitigation was presented on the appellant's behalf. No mention was made of the fact that the appellant had served the 8-month sentence in respect of driving while disqualified, or that he was currently serving a cumulo sentence of 35 months for unrelated offences of dishonesty. No submissions were presented on the question whether the sentence to be imposed in respect of the counterfeiting offence should be concurrent with or consecutive to the sentence of 35 months; whether the imposition of a consecutive sentence would alter the appellant's status as a prisoner from short-term to long-term; and if so, whether and for what reasons the sentencing judge should make any discount in the sentence he was about to impose.
[7] The sentencing judge (Lord Bracadale) noticed that the appellant had been appearing from custody during the trial. As he explains in his report:
" ... In addressing me in mitigation, Mr Burns [Solicitor Advocate] initially made no reference to the sentence of thirty-five months imprisonment which the appellant was serving. The appellant had been on bail in respect of the counterfeiting indictment, but it was obvious that he was appearing from custody throughout the trial. It was only when I asked Mr Burns for an explanation of that, that he explained that the appellant was serving a sentence of thirty-five months, which had been [back-dated to] 13 June 2007. I was given to understand that this sentence related to other, separate, matters of dishonesty. Mr Burns made no submissions to me as to whether I should impose any sentence consecutively or concurrently with the sentence already being served. I took the view that, because the matters for which the appellant had been sentenced to 35 months imprisonment [back-dated to] June of 2007 were entirely separate from the matter before me, it was appropriate for me to impose a consecutive sentence. I did not consider the effect of that on the appellant's status as a short or long term prisoner. I was not asked to do so, and in any event I would not have thought it appropriate to do so.
As far as I have noted or can recall, Mr Burns made no reference at all to the eight month sentence which had been imposed for the road traffic matters committed on 16 November 2006, and I was unaware of that sentence until I saw the grounds of appeal. It was therefore never suggested to me that I should take account of that sentence."
The sentencing judge imposed a sentence of 3 years in respect of the counterfeiting offence, to run consecutively to the 35 months. In terms of section 27(5)(b) of the 1993 Act (quoted in para. [2] above), the sentences were to be treated as a single term of 5 years 11 months, and the appellant's status accordingly changed from a short-term prisoner to a long-term prisoner, with a consequential postponement of his date of early release.
Appeal against sentence[8] The appellant subsequently appealed against the sentence of 3 years. No criticism was made of the period selected, nor was it suggested that the sentence should have run concurrently with the sentence of 35 months. However the appellant argued that the sentencing judge should have taken into account (i) the sentence of 8 months already served in respect of the offence of driving while disqualified, arising (it was contended) out of the same facts or incident as the 3-year sentence for the breach of the Forgery and Counterfeiting Act 1981; and (ii) the fact that the consecutive sentence of 3 years altered the appellant's status from a short-term to a long-term prisoner, with a resultant postponement of his date of early release. Appropriate reductions in the 3-year sentence should have been made to reflect each of those matters.
Submissions for the appellantChange in status to long-term prisoner
[9] Counsel submitted that the broad principle expressed in Shovlin v HM Advocate, 1999 S.C.C.R. 421, namely that sentencing courts in Scotland should concern themselves only with the period imposed as a sentence, and should not take into account practical consequences in the sense of the actual amount of time spent in prison, had been departed from or qualified by the decision of five judges in Ansari v HM Advocate, 2003 J.C. 105, particularly in paragraphs [20], [30], and [37] to [42]. In Ansari, when calculating an appropriate punishment part for a discretionary life sentence, the court looked at an equivalent fixed term sentence and assessed the prisoner's likely early release date and thus how much time would be spent in prison. Ansari had not been superseded or qualified by the recent appeal in Locke v HM...
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