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Extended Sentence Deemed Incompetent at the High Court

PF v Josh McLean 2019

Mr McLean has had his appeal against sentence partially refused at the High Court of Justiciary. Mr McLean was found guilty at the sheriff court of domestic abuse offences. He was sentenced by the Sheriff to four years imprisonment with an extension period of two years. There were 6 charges overall – 2 of a statutory breach of the peace, 2 charges of assault and 2 breach of bail conditions. The appellant argued at the High Court that the sentence of 6 years overall was excessive and also that the extended sentence was not competent. This was in terms of the Criminal Procedure (Scotland) Act 1995 which allows the court to impose an extended sentence in violent offence, which is narrated as an offence “inferring personal violence”.

The appellant argued the last two charges, 5 and 6 were not as defined as violent offences in terms of the Act and therefore the Sheriff had erred in adding these two offences with the others to reach the four year limit in which is competent to impose an extended sentence. The Appeal judges did not agree but did take issue with the sheriff’s approach to charges 4 and 6 concluding the sheriff’s approach in including charges 4 and 6 in the group of offences said to infer personal violence was misconceived.

They concluded: “In these circumstances, we consider that the extended sentence was incompetent. We shall therefore quash the sentence imposed by the sheriff.” Overall, it was stated by Lord Pentland: “We find ourselves in complete agreement with the sheriff that these offences were serious. We agree also that they amounted to a continuation of a pattern of domestically aggravated offending as disclosed in the appellant’s previous convictions. In our view the appellant engaged in a pattern of repeated and serious violence towards his former partner on three separate occasions. In the whole circumstances we shall substitute for the extended sentence a cumulo sentence of four years’ imprisonment.” Therefore the sentence was not found to be excessive.

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