HMA v Andrew McCaw 2019

Mr McCaw has successfully appealed against his sentence due to an error in the way the sentence was imposed. In May 2019 Mr McCaw pled guilty to a charge at Glasgow’s High Court that read “on 23 November 2018 … you did assault [MC], then your partner, … and did repeatedly punch her on the head and repeatedly kick her on the body, repeatedly seize her by the hair and drag her by the body, all to her injury; and it will be proved in terms of section 1 of the Abusive Behaviour and Sexual Harm (Scotland) Act 2016 that the aforesaid offence was aggravated by involving abuse of your partner …”.

As a result of this the appellant was returned by the judge back to prison as a result of a return order as he still had 117 days on licence from a previous housebreaking offence. The appellant had a long record of previous convictions. The sentencing judge made clear that the appellants was to serve the 117 days before serving the 3 years and 3 months sentence that was imposed for the new offence. 3 months was attributed to the aggravation of the charge.

The Appeal Judges at the High Court of Justiciary concluded however:”In order to achieve an equitable result in situations in which one offender has been remanded and another has not, it is necessary to apply the relevant discount, for a plea of guilty in terms of section 196, prior to taking into account the period of remand. In this respect, McLeod v HM Advocate, unreported, High Court of Justiciary, 13 June 2017, must be regarded as having been wrongly decided. The effect of this is that, instead of imposing the sentence of 27 months, a sentence of 17 months should be substituted. No order for backdating should be made and this sentence will start at the conclusion of the section 16 period.” Therefore, the appellant’s sentence was reduced.