News In Focus
1 August 2006
Time on remand counts despite probation breach
When sentencing an accused following breach of a probation order, a sheriff must take into account time spent on remand before the order was imposed.
The criminal appeal court so ruled in allowing an appeal by Jaroslaw Wereszczynski, who was sentenced to three months in prison at Dundee Sheriff Court after breaching a one-year probation order imposed for assaulting a young woman to her injury.
Passing sentence, the sheriff said that although Wereszczynski had spent eight weeks in custody before the order was made, that would have been taken into account by the sheriff at the time. To take it into account again at this stage would mean that he had already served more than the maximum th court could impose, and there would be no effective sanction for breach of the terms of a non-custodial order.
However Lord Macfadyen, giving the judgment of the appeal court, said that in terms of the Criminal Procedure (Scotland) Act the sheriff was sentencing Wereszczynski for the original offence, not imposing a punishment for the failure to comply with the probation order. He was therefore obliged to have regard to any time spent on remand awaiting trial or sentence.
That did not mean that that time had necessarily to be deducted in calculating the sentence to be imposed, but in the circumstances of the present case, it was difficult to see any basis for imposing a sentence of greater length than would have been imposed if imprisonment had been the sentence originally selected, as it would then have been backdated.
It followed that the only proper way to have regard to the time spent in custody on remand was to treat that time as part of the maximum available prison sentence, and as Wereszczynski had served the equivalent of a sentence of more than three months, the court would restrict the sentence to an admonition.
The court's decision can be read at http://www.scotcourts.gov.uk/opinions/2006HCJAC58.html .