Scottish High Court of Justiciary Decisons

JAMES EMSLIE v. HER MAJESTY'S ADVOCATE [1999] ScotHC 2 (7th January, 1999)

The appellant James Emslie pled guilty at the High Court in Edinburgh on 16 October 1998 to a charge of being concerned in the production of cannabis. He received a sentence of three years' imprisonment. The charge in question had been brought against both him and a co-accused named Terras.

The circumstances, however, were very different. Terras was concerned at premises in Gorebridge, and the present appellant was concerned at premises in Kirkcaldy. Moreover, Terras was not concerned over a period. It was accepted by the Crown that his involvement consisted in having assisted in establishing a system by providing his services as an electrician to set up a system of lighting and the like. A sentence of two years was imposed on Terras which was upheld at appeal.

In addition to Terras and the appellant a third man was involved and is indeed the link between what happened at Gorebridge and what happened in Kirkcaldy. This was a man Griffiths. Griffiths himself was sentenced for his part to a sentence of four years' imprisonment. This was reduced to two years at appeal on a basis rather different from that presented at Terras's appeal and on that basis Griffiths was seen as having not been deeply involved. In Griffiths' appeal the Court proceeded on the view that it was a very special case on the facts as presented in that case. That was why the four year sentence which was seen as having been appropriate, if there had been a large scale and persistent involvement, should be reduced to two years on the facts as they were presented.

In relation to the present appellant, one is concerned with equipment in an attic at his home. The equipment is said to have been similar to that at Gorebridge. That equipment is described as a full system for the extensive growing of cannabis plants consisting of plant propagators, trays, irrigation systems, electric lighting, the provision of nutrients and what is called a plant oasis to accelerate propagation. While it was a similar system it appears that the capacity of the system at the present appellant's premises was perhaps of the order of half the capacity at the Gorebridge premises. So far as the use of the equipment is concerned, the present appellant had produced only one harvest and that of only some fourteen to twenty plants. It was suggested that this was a one-off operation but one must have regard to the presence of the physical equipment as well as the not very large harvest which had in fact been produced. A further distinction between the operation at Kirkcaldy and the operation at Gorebridge lies in the fact that at Gorebridge two harvests had been produced.

In presenting the submission that the sentence was excessive Miss Scott accepted that a custodial sentence was appropriate: this had not been production for personal use merely, but had been commercial production, and it was accepted that the period involved (some eight months) must also be taken into account. What had happened, we were told, was that Griffiths had provided the equipment to the appellant. A number of other circumstances were founded upon, in particular, the personal circumstances of the appellant who was a 34 year old, in a job with a number of responsibilities including being the sole carer of his child. It was pointed out that he had no analogous previous convictions and that he had no previous custodial sentence. It was pointed out that there was a positive Social Enquiry Report and that community service was available. It was some three years since the offence and he had no involvement in crime since. It was acknowledged that comparisons were difficult but attention was drawn to the sentences imposed on Griffiths and on Terras. It appears to us that neither of the sentences imposed in these cases is useful for comparative purposes, Griffiths having been treated as only indirectly involved which may not be the fact but was the basis of the sentence, and Terras being involved not as a person carrying on the exercise but only involved as an electrician.

The overall submission was that the sentencing Judge had apparently proceeded on an exaggerated view of what had gone on at these particular premises. He does describe the production as large scale and that may be a matter of degree. We have described what the scale of the actual production was but as he points out it was provided by a sophisticated system and it was devised for commercial sale. It appears that he has taken into account the various other matters which we have referred to and the question is really whether this is an inappropriate sentence in relation to commercial production of this kind. It does not appear to us that it can be so described. The indication in Griffiths' case that four years might be appropriate for persistent large scale production appears to us to be a reasonable comment and the lower sentences fit into the same pattern. In the present case it does not appear to us that the sentence of three years imposed can be described as excessive in relation to what in fact was carried out by the appellant at his premises and the appeal is refused.