APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE RIGHT HONOURABLE LORD McCLUSKEY
NOTE OF APPEAL AGAINST SENTENCE
CRAIG CHARLES DUFF
PROCURATOR FISCAL, DUNFERMLINE
Appellant: Brown, Martin Johnston & Socha, Dunfermline
Respondent: Jandoo, A.D.; Crown Agent
29 April 1999
The appellant is Craig Charles Duff who appeared before the Temporary Sheriff at Dunfermline on 16 March 1999 having been convicted on his own plea on 16 February 1999 on a charge that at his home in Fife on 15 September 1998 he produced a controlled drug, namely plants of the genus cannabis in contravention of section 4(2) paragraph (a) of the Misuse of Drugs Act 1971.
It appears that the police, having received information from an undisclosed source, obtained a search warrant, entered the house and in the bedroom found six growing cannabis plants in a tray. There was also ten cuttings but it was not clear that they had taken. There was the usual equipment necessary for the growing of cannabis at home. The tray in which the plants were kept was in a boarded area some six feet by four feet, in the bedroom. It was stated by the defence agent that the equipment was basic and the cultivation was at the lower end of the scale. As the Temporary Sheriff makes clear in his report, the Procurator Fiscal accepted that the drug was for personal use; and we infer from that that the judgment by the Procurator Fiscal was based upon the relatively small and unsophisticated scale of the operation which was discovered when the police entered the premises.
The appellant had previous convictions not of an analogous character. They were in relation to offences committed in 1987 when he was aged 16. He was born on 3 August 1970. The Sheriff did not attach importance to that record. The basis of the Sheriff's decision that the appropriate sentence was custodial is contained in a paragraph in his report which reads:
"I considered the disposals available to me and came to the conclusion that the only appropriate sentence was a custodial one. I considered that the production or cultivation of any drug must always be viewed as a matter of gravity."
He elaborated upon that and also drew attention to the fact which appeared to him to be a proper inference from the circumstances that the two young children in the appellant's household would be bound to come across these arrangements for the cultivation of cannabis. He clearly attached some importance to that.
Mr Brown, who appeared for the appellant, submitted that the learned Sheriff fell into error in the emphasis he placed on the possibility that the children might discover the growing cannabis plants. However, it does not appear to us to be entirely unreasonable to infer that the children would sooner or later get to know what was going on; and it cannot be said that that is a material error in the Sheriff's approach. Mr Brown also drew attention to what the Sheriff said about the social enquiry report. He noted: "The report discloses that the Appellant is no stranger to Cannabis". Mr Brown indicated that, while that was true, the appellant had now stopped altogether using cannabis. That is a matter about which we cannot really make an independent judgement and we cannot attach a great deal of importance to it.
However, we consider that the Sheriff may have fallen into error in saying that the production or cultivation of any drug was always to be viewed as a matter of gravity. We are aware that the courts treat the possession of cannabis for personal use as not necessarily being an offence of sufficient gravity to attract a sentence of imprisonment . Though bearing in mind what was said in Henderson v HMA 1996 S.C.C.R. 71, we are unable to make any very substantial distinction for the purpose of sentencing in this particular case between acquiring cannabis for personal use and being in possession of a few plants for the purposes of growing cannabis on a very small scale for personal use; and we do not think it necessarily follows that the growing of cannabis in circumstances such as the present has to be regarded as a matter of such gravity as necessarily to attract, in the case of essentially a first offender, a custodial sentence.
In these circumstances, we feel able to approach the matter afresh. We think that the courts' view of the severity of the offence in this case can properly be reflected by imposing a community service order for the maximum number of hours available which is 240. We intend to make such an order subject to the usual consent.
It must, none the less, be made clear that any involvement with a prohibited drug is an involvement which, if it does not lead directly and automatically to a custodial sentence, is risking the likelihood of such a sentence.