Jamie Lee Ottaway v. Procurator Fiscal, Dundee [2012] HCJAC 36

Criminal Appeal Against Sentence:- The appellant pled guilty at Dundee Sheriff Court on 22 September 2011 to charges of reset. He was first made subject to a 3 month return order under section 16 of the 1993 Act and secondly sentenced to 22 days and 5 months imprisonment respectively for the two offences of reset. The appellant appealed on the grounds that the sheriff ought to have discounted the sentences of 22 days and 5 months on account of the pleas being tendered at the earliest opportunity and these sentences were the same as those imposed on a co-accused who had not pled guilty at all. In his report the sheriff conceded that this was an error and that after discount the sentences should have been 14 days and 100 days respectively. It was also contended on behalf of the appellant that he should have had a full discount on the 3 month return order which the sheriff made against him under section 16 and the terms of section 196 of the 1995 Act were wide enough to encompass what was a punitive order under section 16 as well as the subsequent sentence for a new offence. Here the court considered this wider aspect of the appeal and whether the appellant had any claim to discount by virtue of section 196 of the Act of 1995 in relation to the section 16 return order. The court had regard to:- (1) the fact that the potential for a section 16 return order arises automatically without the necessity for any proof or plea; (2) that the maximum potential length of a return period under section 16 is precisely the same whether the fresh conviction proceeds on a plea of guilty or after trial; (3) that the maximum potential return period may be restricted in consequence of a discount having been applied at the time when the original sentence was imposed; (4) that the section 16 return order and the subsequent passing of sentence for the new offence are separate and distinct exercises; (5) whether it is the objective utilitarian value of a plea of guilty which attracts a discount rather than subjective considerations of remorse; (6) whether section 196(1A) of the 1995 Act relates to "a sentence...in respect of a crime or offence..." in terms of section 307(1)) rather than the antecedent imposition of any return order which, as defined in section 16(5)(a) of the 1993 Act; and (7) whether there was any reason why section 196(1) should be taken to extend beyond whatever sentence, disposal or other order may be imposed for a new offence to which the offender has pled guilty.