‘Incompetent’ supervised release order quashed but extended sentence imposed instead

The Criminal Appeal Court ruled that the SRO was “incompetent” in light of the custodial term and the fact the sheriff did not call for a criminal justice social work report (CJSWR), and therefore imposed an extended sentence of six years imprisonment with a custodial element of four years.

The Lord Justice Clerk, Lord Carloway (pictured) – sitting with Lady Paton and Lord Bracadale – heard that in January 2015 following a trial at Glasgow Sheriff Court, the appellant James McNeeley was convicted of an assault to severe injury, permanent disfigurement and permanent impairment, having attacked a stranger in a street in broad daylight.

The complainer was a 30-year-old male who had been coming out of a shop in Shieldhall Road in the morning when the appellant struck him on the chest and arm with a hatchet.

The wound to the arm was 12cms in length and over 30 hours of surgery were required to treat the arm. Skin grafts from his leg were needed, as were 50 stitches, and he spent some 16 days as an in-patient.

After the jury’s verdict, there was little said by way of mitigation, although the agent invited the court to call for a CJSWR, but the sheriff did not do so, and he sentenced the appellant to four years imprisonment and added a SRO of 12 months.

The sheriff made the sentence consecutive to a return order under section 16 of the Prisoners and Criminal Proceedings (Scotland) Act 1993; the number of unexpired days having been agreed by the parties at 147.

The appellant had been released on licence on 1 July 2013 and his licence expired on 31 October 2014, but unknown to the sheriff, that licence had been revoked by the Scottish Ministers under section 17 of the 1993 Act on 13 August 2014.

The two points raised in the appeal were firstly that there had been an element of “double counting” by reason of the sheriff imposing the section 16 order where there had been a recall of a licence, and secondly, that the SRO was incompetent in light of the period of incarceration and the absence of a CJSWR, which the sheriff had readily acknowledged.

When the case previously called before the appeal court, a CJSWR was requested with a view to determining what appropriate supervision might be required.

The report set forth the appellant’s background in Govan, the separation of his parents, his expulsion from school, and the fact that he only came to the attention of the criminal justice system when he was about 19.

The risk of him causing harm was assessed at “medium”.

The appeal judges explained that the fact that there had been revocation of a released prisoner’s licence under section 17 of the 1993 Act did not affect the competency of the court imposing a separate order under section 16 of that Act for such a period, up to the maximum permitted, as the court considered fit.

But the court held that the return order here was a “competent” one and that having regard to all the circumstances, the ultimate custodial element of the sentence could not be described as “excessive”.

“Indeed, on any view, where an accused has gone into the public street during the hours of daylight and attacked a stranger with a hatchet, causing very serious injuries, the custodial element selected by the sheriff can only be described as at the lower end of available disposals,” Lord Carloway said.

In light of the restricted nature of the appeal, the court decided not to interfere with that element, but it did quash the sentence and impose an extended sentence instead.

Delivering the opinion of the court, the Lord Justice Clerk said: “The court is bound to quash the SRO as incompetent. It takes note of the fact, however, that the sheriff considered that a period of post release supervision was required. That matter has been confirmed by the risk assessment contained in the CJSWR.

“In all the circumstances, the court will quash the entire sentence and instead impose an extended sentence, involving two years of supervision. The sentence will therefore be an extended one of six years, of which the custodial element is four years.”