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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Penman v. Procurator Fiscal, Dundee [2006] ScotHC HCJAC_36 (04 April 2006) URL: http://www.bailii.org/scot/cases/ScotHC/2006/HCJAC_36.html Cite as: 2006 SLT 495, 2006 JC 183, [2006] HCJAC 36, [2006] ScotHC HCJAC_36, 2006 GWD 15-286, 2006 SCCR 277

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Macfadyen

Lord Marnoch

[2006] HCJAC 36

Appeal No: XJ1908/05

OPINION OF THE COURT

delivered by LORD MACFADYEN

BILL OF SUSPENSION

ROBERT PENMAN

Complainer;

against

PROCURATOR FISCAL, Dundee

Respondent:

_______

Complainer: M.C. MacKenzie; Drummond Miller

Respondent: G.C. Bell, Q.C., ad hoc A.D.; Crown Agent

4 April 2006

Introduction

[1] On 5 September 2005 the complainer appeared in Dundee Sheriff Court at an intermediate diet in a summary complaint containing seven charges of theft. His pleas of not guilty to charges 1 and 2 were accepted. He tendered pleas of guilty to charges 3, 4, 5, 6 and 7. Each of the charges to which he pled guilty was aggravated by having been committed while the complainer was the subject of three bail orders, namely orders granted at Dundee Sheriff Court on 9 August 2004 and 14 March 2005 and at Dundee District Court on 9 June 2005. After two periods of deferral of sentence, the complainer was on 19 December sentenced to a total of eighteen months imprisonment.

[2] As the sheriff has explained at page 4 of his report, and as is borne out by the minutes of proceedings, the total sentence of eighteen months which he imposed was made up as follows:

Charge 3:	four months imprisonment, three months of which related to the bail aggravation;
Charge 4:	four months imprisonment, three months of which related to the bail aggravation;
Charge 5:	four months imprisonment, three months of which related to the bail aggravation
Charge 6:	four months imprisonment, three months of which related to the bail aggravation
Charge 7:	two months imprisonment,, one month of which related to the bail aggravation.

The five sentences were ordered to be consecutive to each other.

[3] In respect of those sentences the complainer has brought a bill of suspension. The contention which he advances is that the sentences imposed by the sheriff exceed the aggregate sentence which it was competent to impose in respect of the complaint. Although there were differences in detail between the submissions made by Ms MacKenzie, who appeared for the complainer, and by the Advocate depute, both maintained that the sheriff had exceeded the maximum aggregate sentence which could competently be imposed in respect of the complaint. The sheriff, however, set out in his report in some detail his reasons for taking the view that the sentences which he imposed were competent. In these circumstances, notwithstanding the broad agreement between the complainer and the respondent, we heard full argument on the issue of competency.

The statutory framework

[4] The appropriate starting point at which to begin examination of the sheriff's powers with regard to sentence is section 5 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"). That section provides inter alia as follows:

"(2)	The sheriff shall, without prejudice to any other or wider powers conferred by statute, have power on convicting any person of a common law offence - ...
	(d)	to impose imprisonment, for any period not exceeding three months.
(3)	Where a person is convicted by the sheriff of -
	(a)	a second or subsequent offence inferring dishonest appropriation of property, or attempt thereat; ...
	he may, without prejudice to any wider powers conferred by statute, be sentenced to imprisonment for any period not exceeding six months".

Those provisions bear to relate to the sheriff's sentencing powers in respect of a single charge. We shall return in due course to the question of the limits on the sheriff's powers in sentencing in respect of more than one charge on a single complaint.

[5] The issue in the present case arises from the manner in which the sheriff treated the fact that each of the charges with which he had to deal was aggravated by the substantive offence having been committed while the complainer was the subject of bail orders. The statutory provisions which apply in that situation are to be found in section 27 of the 1995 Act. That section provides inter alia as follows:

"(1)	Subject to subsection (7) below, an accused who having been granted bail fails without reasonable excuse -
	(a)	to appear at the time and place appointed for any diet at which he has been given due notice; or
	(b)	to comply with any other condition imposed on bail,
	shall, subject to subsection (3) below, be guilty of an offence and liable on conviction to the penalties specified in subsection (2) below. ...
(3)	Where, and to the extent that, the failure referred to in subsection (1)(b) above consists in the accused having committed an offence while on bail (in this section referred to as "the subsequent offence"), he shall not be guilty of an offence under that subsection but, subject to subsection (4) below, the court which sentences him for the subsequent offence shall, in determining the appropriate sentence or disposal for that offence, have regard to -
	(a)	the fact that the offence was committed by him while on bail and the number of bail orders to which he was subject when the offence was committed;
	(b)	any previous convictions of the accused of an offence under subsection (1)(b) above; and
	(c)	the extent to which the sentence or disposal in respect of any previous conviction of the accused differed, by virtue of this subsection, from that which the court would have imposed but for this subsection. ...
(5)	Where the maximum penalty in respect of the subsequent offence is specified by or by virtue of any enactment, that maximum penalty shall, for the purposes of the court's determination, by virtue of subsection (3) above, of the appropriate sentence or disposal in respect of that offence, be increased -
	(a)	...
	(b)	where it is a period of imprisonment -
		(i)	as respects a conviction in the High Court or the sheriff court, by 6 months; ...
	notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose."

The complainer's submissions

[6] Ms MacKenzie relied on a line of authority beginning with Maguiness v MacDonald 1953 JC 31 and Kesson v Heatly 1964 JC 40, and culminating in the full bench decision in Nicholson v Lees 1996 JC 173, which settled that a sheriff cannot, when dealing with a complaint on which two or more charges appear, impose a total period of imprisonment which exceeds in aggregate the maximum prescribed for the charge which carries the highest penalty. The logic of that state of affairs may not be immediately obvious, but the relevant rules were definitively expressed in Nicholson v Lees, at 179E, as follows:

"Where two or more charges are contained in a single complaint, the court cannot competently impose a total period of imprisonment which exceeds in aggregate the upper limit permitted for that court in the particular case by common law or statute. ...

Where two or more charges each attract a different maximum, the highest penalty which can competently be imposed is the maximum prescribed for the charge which carries the highest penalty."

[7] In applying that approach to the present case, it was necessary to work through a number of stages of calculation. First, the maximum sentence in respect of the substantive part of charge 3 was three months imprisonment, because the complainer had no previous conviction in respect of an offence inferring dishonest appropriation of property. In respect of charges 4, 5, 6, and 7, however, the maximum was six months, since they were, by virtue of the complainer's conviction in respect of charge 3, second and subsequent offences inferring dishonest appropriation of property (section 5(3)(a)). Thus, ignoring for the time being the bail aggravations, the maximum sentence which the sheriff could have imposed by the application of the rules quoted above from Nicholson v Lees, was six months imprisonment, whether that aggregate was achieved by concurrent or consecutive sentences.

[8] The second stage of the calculation depended on a proper application of section 27. It was crucial, it was submitted, to realise that subsection (3) made an exception to subsection (1). Under subsection (1) most failures to comply with bail conditions constitute independent offences, attracting separate penalties under subsection (2). Under subsection (3), however, where the failure to comply with a condition imposed on bail consisted in having committed an offence while on bail, that failure did not constitute an offence under subsection (1). Instead, it constituted an aggravation of the subsequent offence. The aggravation took effect in two stages. First, the court in determining the appropriate sentence or disposal for the subsequent offence required to take into account the factors mentioned in paragraphs (a), (b) and (c) of subsection (3). Secondly, in subsection (5), the maximum penalty in respect of the subsequent offence was, "for the purpose of the court's determination, by virtue of subsection (3) above, of the appropriate sentence or disposal in respect of that offence", increased, in respect of a sheriff court conviction, by six months.

[9] The consequence of following through these stages was that the maximum sentence in respect of each charge was increased. In the present case, the maximum sentence of imprisonment on respect of charge 3 was increased to nine months, and the maximum sentence of imprisonment in respect of each of the other charges was increased to twelve months. That was the correct way of viewing the effect of section 27. It did not provide for separate additional sentences where a subsequent offence was committed while on bail. That was precisely what subsection (3) ruled out. Instead, the maximum sentence for each subsequent aggravated offence was increased by six months.

[10] The final stage of the calculation involved determining how the rules set out in Nicholson v Lees affected the matter. The maximum aggregate sentence that could competently be imposed in respect of the complaint was the maximum sentence which could be imposed in respect of the charge which carried the highest penalty. In the present case that was twelve months, because twelve months was the maximum increased sentence available in respect of charges 4, 5, 6 and 7 (the maximum in respect of charge 3 being nine months). That was the result correctly figured in Connal v Crowe 1996 SCCR 716, per Lord Sutherland at 718B.

Crown submissions

[11] The Advocate depute did not dispute the soundness of the foregoing analysis. He addressed, however, an additional complication which would arise when, as in the present case, the aggregate sentence attributed to the substantive parts of the subsequent offences fell below the maximum which would have been competent if there had been no bail aggravations. In the present case, the sheriff attributed one month of the sentence in respect of each charge to the substantive offence of dishonesty, making an aggregate of five months. The question which the Advocate depute posed was whether that left available to be attributed to the bail aggravations six months (namely the increase authorised under section 27(5)) or seven months (namely the increased penalty comprising the maximum available under section 5 plus the increase authorised by section 27, less the period actually attributed to the substantive offences). The converse situation can also be figured: would it have been competent in the present case for the sheriff to deploy the whole of the twelve months available under sections 5 and 27 by attributing more than six months to the substantive offences and less than six months to the aggravation?

[12] The Advocate depute laid before us a number of cases which he submitted were in conflict. The first of these was Hamilton v Heywood 1997 SCCR 783. There the appellant pled guilty to two charges in respect of which the maximum competent sentence was three months. Each charge was aggravated by being committed while the appellant was subject to two bail orders. The sheriff sentenced the appellant to two consecutive sentences of four month's imprisonment, one month of each sentence being attributable to the bail aggravation. The Crown conceded that since the sheriff had attributed only two months to the bail aggravation, the maximum aggregate sentence that could competently be imposed was five months. The court observed that the Crown's concession might have to be reconsidered. The second case cited by the Advocate depute was Hepburn v Howdle 1998 SCCR 363. That case did not involve the application of section 27. The appellant, who had previous convictions for offences of dishonesty, pled guilty on summary complaint to two charges, one of theft and one of breach of the peace. The sheriff, who had power to impose a sentence of six months imprisonment in respect of the theft charge by virtue of section 5(3)(a), in fact imposed sentences of three months imprisonment on each charge, the sentences to be consecutive. The appellant argued that the sheriff had no power to impose an aggregate sentence greater than the sentence actually imposed in respect of the charge to which section 5(3)(a) applied. The court rejected that argument. The Lord Justice Clerk (Lord Cullen), delivering the opinion of the court, said (at 365B):

"In our view the plain meaning of subsection (3)(a) is to increase the general limit of the sheriff's sentencing power in regard to offences at common law where there is a charge which attracts the application of that provision. In that situation the general limit provided by subsection (3)(a) replaces that under subsection (2)(d). Accordingly, it is of no consequence what combination of sentences is adopted, so long as the overall total of six months is not exceeded."

The court went on to state (at 367B) that the concession in Hamilton v Heywood had been wrongly made.

[13] The Advocate depute went on to say that Hepburn v Howdle appeared to have been lost from sight. It appears not to have been cited in Jackson v McFadyen 2001 SCCR 224, which was the third case laid before us. It was concerned with section 27. The appellant, who had previous convictions for personal violence, and could thus competently be given a sentence of six months imprisonment by virtue of section 5(3)(b), pled guilty to three charges of assault, all committed while on bail. In respect of charges 1 and 2 he was sentenced to five months imprisonment, of which one month was attributed to the bail aggravation. He was sentenced to three months imprisonment on the third charge, consecutive to the five month sentence, thus making a total of eight, of which only one related to the bail aggravations, and thus seven related to the substantive offences. His appeal against the second sentence was upheld on the ground that it was of incompetent length, and it was reduced to two months. The Crown withdrew the Hamilton concession and advanced an argument summarised by Lord Prosser in the opinion of the court (at 228F) as follows:

"[The Advocate depute] contended that the twelve month maximum which was available in relation to charges 1 and 2 in the present case permitted not merely total sentences amounting to six months plus whatever the sheriff might attribute to the bail aggravations, but sentences such as those imposed by the sheriff, using the additional six months provided for by section 27(5) not only for the purpose of adding one month because of the bail aggravation, but also as enabling the sheriff to impose consecutive sentences, amounting to eight months in all, including that month."

That argument was rejected. Lord Prosser said (at 229B-C):

"But it is to be observed that subsection 5 [of section 27] does not simply increase the maximum in respect of the offence. It increases it for specified purposes: 'for the purposes of the court's determination, by virtue of subsection (3) above, of the appropriate sentence or disposal in respect of that offence'. It does not appear to us that the increase exists or is made available at large, or can be used for any other purposes than those prescribed. And while of course the court in determining sentence will have regard to all the relevant circumstances, the determination 'by virtue of subsection (3) above' must in our opinion be read as relating to the specified heads (a), (b) and (c)."

The Advocate submitted that we should follow Hepburn rather than Jackson, and in effect hold that the sheriff, having attributed an aggregate of only five months imprisonment to the substantive offences, had seven months available to attribute to the bail aggravation.

Discussion

[14] We are satisfied that on the principal issue raised by the bill the submissions made on the complainer's behalf and concurred in by the Advocate depute are correct. On the basis of the analysis set out in paragraphs [6] to [9] above, we are of opinion that the effect of section 27(3) and (5) was to increase the maximum sentence in respect of each charge by six months, and that applying the rules set out in Nicholson v Lees the maximum aggregate sentence of imprisonment which could competently be imposed in respect of the complaint was twelve months, whether that total was made up of concurrent or consecutive sentences. It follows that the bill must be passed.

[15] The issue raised by the Advocate depute does not arise directly, but it may be of assistance to the sheriff for us to indicate our views on it. We do not consider that Hepburn and Jackson are in conflict. Hepburn was concerned with a statutory provision (section 5(3)) which simply increased the sheriff's sentencing power when the accused person had certain previous convictions. In that context we agree with the observation by Lord Justice Clerk Cullen which we have quoted in paragraph [11] above. Jackson, however, was concerned with the more complex provisions of section 27. As Lord Prosser pointed out, the increased powers conferred by section 27(5) are conferred for the specific purpose identified. We agree that it follows from that that they may only be used for that purpose, namely to reflect the bail aggravation. If less than six months is attributed to the bail aggravation, the balance cannot be used to increase the period available to be attributed to the substantive offence. Conversely, if the period attributable to the substantive offence is less than the maximum which that offence could attract if there were no bail aggravation, the surplus cannot be used to augment the extra six months provided for by section 27(5), because that subsection contemplates that the extra six months is the maximum attributable to the bail aggravation. In the result, therefore, if the sheriff were to adhere to an aggregate of five months in respect of the substantive offences, the maximum he could add in respect of the bail aggravation would remain six months, being the addition permissible in respect of any one charge.

Result

[16] As we have already indicated, we shall pass the bill and suspend the sentences complained of. In that situation we regard it as appropriate to remit to the sheriff to proceed as accords in the light of this opinion.