APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: C209/99
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
APPEAL AGAINST SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: Doherty, Q.C., A.D.; Crown Agent
Respondent: Kerrigan, Q.C., R. Anthony; Caird Vaughan
7 July 1999
The Lord Advocate has appealed against the making of a probation order on 12 March 1999 on the respondent, who was then 24 years of age, in respect of his contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 on the ground that the making of the order was unduly lenient. The probation order was for a period of two years and was subject to a condition that the respondent accepted a position in Phoenix House, Newcastle which had been offered to him and underwent the detoxification and rehabilitation course which was available there.
The respondent pled guilty to the charge on 2 December 1998. The circumstances of the offence were as follows. On 9 January 1998 police officers, acting on information received, carried out a search of a house at 226 Balmagask Road, Aberdeen in the presence of the respondent and his girlfriend. Three sums of money totalling £760 were found. In consequence of information that the respondent had used the house at 224 Balmagask Road as a place in which to store drugs, police officers carried out a further search on the same date at that address. They were admitted by a woman called Tracy Reid. She admitted that she kept heroin for the respondent and showed them a tin containing seven bags of brown powder, which were later found to contain that drug with a purity of 22% by weight. Each bag contained approximately 3 gms. of powder. The value of the powder in that form was about £1,750. She informed the police that at the outset no payment had been made to her by the respondent for her keeping the drugs, but latterly she had received £100 per week. On the following day the respondent, who was then in custody, made a statement to police officers that the drugs found at 224 Balmagask Road belonged to him. He later made a further statement in which he admitted responsibility for the presence of drugs where they were found. The police also received information from a witness who told them that he had purchased diamorphine from the respondent on a daily basis for some months. In terms of the charge, the respondent pled guilty of being concerned in the supplying of diamorphine at 226 and 224 Balmagask Road, Aberdeen between 1 June 1997 and 9 January 1998, including and in particular to Tracy Reid, the witness to whom we have referred and one other person.
The respondent had 24 previous convictions, all in summary proceedings in the Sheriff Court or in the District Court. The previous convictions were largely for crimes of dishonesty, but included three convictions in respect of contraventions of section 5(2) of the 1971 Act, one in respect of section 5(3) and one in respect of section 23(4)(a). He had received a number of custodial sentences. On 7 July 1997 he was put on probation for a period of 12 months in respect of a number of charges, including the contravention of section 23(4)(a) and one of the contraventions of section 5(2) to which we have referred. In these circumstances by far the greater part of the period within which the present offence was committed fell within the period of probation. It may also be noted that on numerous previous occasions the appellant had been convicted for breach of section 3(1)(a) or (b) of the Bail etc. (Scotland) Act 1980.
The account of the personal circumstances of the respondent which was given to the sentencing judge was that he had enjoyed a stable relationship with his girlfriend for a number of years. There were three children of the relationship, the oldest of which was five years of age. It was represented that a large part of the respondent's previous offending had been due to the fact that he had been addicted to heroin for a substantial period of time. His background was unfortunate. He had been born in Aberdeen, but his parents had separated when he was young. He left home at the age of 15. He subsequently relied on friends for accommodation. He had had no formal education since the age of 14. He had no qualifications or trade. He had no periods of secure employment. He had a history of drug abuse from about the age of 13. Due to his dependency on controlled drugs and his lack of funds he had engaged in the supplying of controlled drugs to others. He had never enjoyed a lavish lifestyle. It was said that the respondent understood the seriousness of the offence to which he had pled guilty. His predicament had brought him closer to his girlfriend, and he wished to endeavour to free himself from dependency on drugs. The social enquiry report dated 23 December 1998 stated that the respondent seemed to appreciate if he was to stop offending he would have to "address the issues which exist for him in relation to illegal drugs". The author of the report stated that owing to the serious nature of the offences and the previous difficulties which he had experienced in complying with statutory orders it was not possible to make a positive recommendation. The sentencing judge also had before him a psychiatric report by Dr. Rainer Goldbeck, dated 28 January 1999. This had been obtained after an incident in which the respondent attempted to commit suicide by driving a car off the top of a cliff, in consequence of which he had sustained certain injuries. The sentencing judge was also informed that the respondent had made a further attempt at suicide by taking a drug overdose. The psychiatric report set out that the respondent had previously been referred to the drug problem service in 1995 and 1997 but had failed to attend. On 4 January 1999 the respondent had been admitted to hospital following the first of these incidents. It was concluded that this had been precipitated by distress concerning the case. Neither the psychiatrist nor the liaison psychiatry nurse felt that the respondent was suffering from a clinical form of depression. There was no sustained suicidal ideation. The respondent had not attended for a further follow-up appointment on 27 January. The respondent had stated that he had previously tried to cut his wrists while in prison, and on one occasion had tried to hang himself. He denied ever being treated with anti-depressant medication and he had not been a patient in a psychiatric hospital. The psychiatrist narrated that the respondent now had a strong desire to come off drugs and was keen to undergo detoxification and become involved in a rehabilitation programme. He currently displayed depressive features likely to be in reaction to the case and the prospect of further possibly lengthy imprisonment. In his recommendations the psychiatrist expressed the view that the respondent had reached a point in his life where he might well benefit from drug detoxification and drug rehabilitation, although his motivation was no doubt influenced by the prospect of a further custodial sentence.
The sentencing judge explains in his report that his initial reaction to the case was that a substantial custodial sentence was likely to be appropriate. However, as events developed and in the light of the material which was before him on 29 January 1999, he began to reconsider that view. He sets out a number of considerations. In the first place, the respondent had been addicted to heroin from the age of around 18, and had been abusing controlled drugs generally from a much earlier age. Secondly, it appeared to be generally accepted that his offending in recent years was directly related to his drug problems. In the third place, it was quite obvious to him from details of the criminal record of the respondent that previous sentences of imprisonment had achieved nothing; the respondent had simply continued to offend. In the fourth place the respondent had made at least one very serious attempt to kill himself, which showed that he realised the seriousness of his whole situation and might therefore be motivated to take action to address his drug addiction, because of it. In those circumstances at the hearing on 29 January 1999 he indicated to the parties and, in particular, to counsel for the respondent that the most constructive course to be taken and one which would be in the interests, not only of the respondent, but also of the public would be the addressing and overcoming of the respondent's drug problem. Between that date and 12 March when the probation order was made enquiries were carried out in order to determine whether the respondent was assessed as suitable for rehabilitation, and whether a place for him in a residential detoxification centre could be found. This was confirmed in a supplementary social enquiry report, dated 24 February 1999. That report stated that during the period of deferment the respondent
"would appear to have demonstrated his ability to co-operate with the requirements of a probation order and also has shown his willingness to begin the process of addressing the issues which exist for him in relation to his illegal drug use".
The sentencing judge explains his approach in clear terms as follows:
"I have come to be of the opinion that the imposition of a sentence of imprisonment in the present case would be a completely pointless waste of public money. Sentences of imprisonment have been imposed on the respondent in the past and have brought about no improvement in his behaviour. It appears to me that at the root of his offending has been his long-standing drug addiction. If that could be properly addressed, then there would be a reasonable chance that his offending might be brought to an end. He now seems to understand the gravity of his situation and be prepared to do that. It was with such considerations in mind that I took the course which I did. I think it appropriate to say that, during the course of my handling of this case, I became increasingly concerned about the futility of imprisonment in cases such as this one and the difficulty in finding residential places in establishments devoted to the detoxification and rehabilitation of drug addicts".
He says that he regarded his disposal of the case as the only rational and sensible one which could be made in the circumstances.
The Advocate depute accepted that it was for him to demonstrate that the disposal in this case was outwith the range of disposals which was appropriate for the case. He submitted that, having taken the view that the only useful course to adopt was to take non-custodial disposal, the sentencing judge had focused on rehabilitation to the exclusion of what was required in the way of due punishment and for the deterrence of others. He had gone too far in saying that imprisonment had achieved nothing. Reference was made to H.M. Advocate v. McPhee 1994 S.C.C.R. 830 and H.M. Advocate v. Lee 1996 S.C.C.R. 205. In the present case the respondent had engaged in a course of dealing in a class A drug over a period of seven months and had involved an innocent party in keeping drugs for him. He had had numerous previous convictions, and had failed to take up the past opportunities which had been given to him for refraining from further offending. It was also pertinent to point out as confirming the correctness of his submission that Tracy Reid had been sentenced to 18 months imprisonment for her part in keeping the heroin, in contravention of section 4(3)(b) of the 1971 Act and her appeal against that sentence had been refused. This was made known to the sentencing judge, although it was not mentioned in his report. At the same time the Advocate depute accepted that this matter was not referred to in the note of appeal, as it should have been if it was to be founded on.
For the respondent Mr. Kerrigan accepted that on one view the disposal in the present case was a lenient sentence, but argued that it was not excessively lenient. The sentencing judge had been entitled to question whether in the case of the respondent punishment had worked. It was a reasonable view for him to take that the protection of the public could be secured only if the respondent's root problem was addressed. It was a fair conclusion from the information before the court that his previous offending had been associated with his addition to drugs. The respondent had indicated his willingness to take up the opportunity to undergo detoxification and rehabilitation. His attempted suicide was significant as showing that he would take a positive attitude. This was borne out by a report from Phoenix House dated 15 June 1999. It showed that, having begun to reside there on 7 April 1999, he had successfully completed a difficult detoxification programme and was now taking steps to face up to his previous misuse of drugs. The view was expressed that he was making progress after completing the induction phase of his programme.
We do not doubt that there are circumstances in which the sentencer may well be faced with a choice between different courses of action, each of which is said to serve the interests of the public. The circumstances in the present case, on the other hand, appear to us to have been decidedly unfavourable to a non-custodial disposal, in view of the respondent's previous offending, the fact that the present offending occurred for the most part during a period when he was on probation, and that the indications of his positive attitude to reforming his life were somewhat limited.
However, more fundamentally, the sentencing judge was faced with the type and seriousness of offending which the courts have consistently sought to meet by means of substantial custodial sentences. The fact that the previous short sentences of imprisonment passed on the respondent had not led to an end to his offending could not properly lead to the conclusion that a non-custodial disposal was the only appropriate course to adopt. If his previous offending was drug-related, that did not mean that he was entitled to any preferential treatment on that account. We do not doubt that the sentencing judge took into account what was the normal disposal for such serious offending. Our concern is that the disposal which he selected failed to take into account the need to exact retribution for the gravity of the offence and to deter others from similar offending. It does not seem to us that in the present case there were exceptional circumstances to justify a non-custodial sentence for this offence. In our view the sentence imposed was outwith the range of disposals which was appropriate for an offence of this gravity.
In these circumstances we will quash the probation order and impose a sentence of five years imprisonment. Having regard to the fact that the respondent has been subject to the probation order and the conditions attached to it since 12 March 1999, that sentence will run from that date.