Scottish High Court of Justiciary Decisons

ALEXANDER FINNIE v. HER MAJESTY'S ADVOCATE [1999] ScotHC 32 (19th February, 1999)

The appellant is Alexander Finnie who pled guilty in the High Court at Edinburgh to a contravention of Section 4(3)(b) of the Misuse of Drugs Act 1971 and to a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995 in respect of his previous failure to appear for trial. The sentencing judge imposed a sentence of four years six months in respect of the drugs charge and a sentence of twelve months to run consecutively to the original sentence in respect of the failure to appear. The appellant had been in custody since 13 May 1998 following that failure to appear and he was sentenced on 23 June. The appellant has appealed against sentence on two grounds: first that the sentence imposed in respect of charge 1, the drugs charge, was excessive; and secondly, that the sentencing judge should have back-dated the sentences to 13 May 1998.

So far as the first of these points is concerned, the appellant claims that the sentencing judge failed to take account of mitigating circumstances. It is pointed out that he had possession of the drugs in his house for only approximately four hours, that he picked up the drugs to repay a debt of £150 and that he has no analogous previous convictions.

In developing those aspects of the appeal this morning, Miss Ogg submitted that the sentencing judge had failed to reflect the desperation which lay behind the appellant's actings. He had been short of money and had been pressed by a creditor. He had agreed to take the drugs and to pass them on. He had understood that it would only be a fleeting possession. In the event the creditor had declined to take possession of the drugs immediately and it was in these circumstances that he was holding them, when the police arrived. She also pointed out that the appellant had had a drugs problem at the time but that, since going into prison, he had undertaken methadone treatment and had now been drug-free for a period of ten months. While in prison he had become a listener for the Samaritans and he had undergone one-to-one drug counselling with a view to remaining beyond the sphere of drugs when he returned to the outside world. She also pointed out that he had been suffering from Hepatitis C.

Miss Ogg went on to submit that the appellant's family circumstances were relevant. As is pointed out by the trial judge, he and his girlfriend had had a child and have now indeed had a second child. At the time when he was due to go for trial he was unable to bear the prospect of being parted from his first child and that was the reason why he had not attended for trial. It was further submitted that his girlfriend was depressed because of the situation she now found herself in, with the family homeless. In all the circumstances, said Miss Ogg, the sentence imposed in respect of the drugs charge could be regarded as excessive.

We have carefully considered the points which Miss Ogg made but it is plain that the learned sentencing judge had regard to the points which were made in mitigation to him and that he was aware of all the circumstances. Among those circumstances were, of course, the facts that the drugs concerned were cannabis resin, that the quantity was three kilograms and that it had a value of about £20,000. It was therefore on any view a very substantial cache of drugs which was found in the bag in the appellant's house. Having regard to the quantity and the value of the drugs, and accepting the position that he was holding them for a comparatively short period only, we cannot say that the sentence, though high, was excessive.

That leaves the matter of back-dating. As Miss Ogg pointed out, the sentencing judge had imposed a sentence of one year as a punishment on the appellant for failing to turn up for his trial. In those circumstances we are satisfied that it would have been appropriate to back-date the total sentence. What we shall accordingly do is quash the sentences imposed by the sentencing judge and back-date those same sentences to 13 May 1998. The remainder of the appeal is refused.