38Commission of offence within certain period of release from prison to be aggravation
(1)Where a person who has been sentenced to imprisonment for a term of twelve months or more commits a further offence within a period—
(a)starting on the date on which he is released from prison; and
(b)ending after a period equal to one sixth of the term for which he was sentenced,
the court which sentences him for the further offence shall, in determining the appropriate sentence or disposal for that offence, have regard to the fact that the further offence was committed during that period.
(2)The court shall not have regard to the fact that the further offence was committed during the period mentioned in subsection (1) above unless written notice that that fact is to be brought to the attention of the court has been served on the person concerned with the complaint or indictment.
(3)The fact that the further offence was committed within the period mentioned in subsection (1) above shall, unless challenged—
(a)in the case of proceedings on indictment, by giving notice of a preliminary objection under paragraph (b) of section 72(1) of the 1995 Act (preliminary diet: notice) or under that paragraph as applied by section 71(2) of that Act (first diet); or
(b)in summary proceedings, by preliminary objection before his plea is recorded,
be held as admitted.
(4)Where the maximum penalty in respect of the further offence is specified by or by virtue of any enactment, that maximum penalty shall, for the purposes of the court’s determination, by virtue of subsection (1) above, of the appropriate sentence or disposal in respect of that offence, be increased—
(a)where it is a fine, by the amount for the time being equivalent to level 3 on the standard scale; and
(b)where it is a period of imprisonment—
(i)as respects a conviction in the High Court or the sheriff court, by six months; and
(ii)as respects a conviction in the district court, by 60 days,
notwithstanding that the maximum penalty as so increased exceeds the penalty which it would otherwise be competent for the court to impose.
(5)Where the sentence or disposal in respect of the further offence is, by virtue of subsection (1) above, different from that which the court would have imposed but for that subsection, the court shall state the extent of and the reasons for that difference.
(6)This section applies to a child who—
(a)has been sentenced to a determinate period of detention of twelve months or more under section 208 of the 1995 Act (detention of children following conviction on indictment); and
(b)is convicted by a criminal court of a further offence,
as it applies to prisoners.