Scottish High Court of Justiciary Decisons

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Cite as: [2005] ScotHC HCJAC_100, [2005] HCJAC 100

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Leith v. Her Majesty's Advocate [2005] ScotHC HCJAC_100 (26 August 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Johnston

Lord McEwan

[2005HCJAC100]

Appeal No: XC959/04

OPINION OF THE COURT

delivered by LORD JOHNSTON

in

APPEAL AGAINST SENTENCE

by

BRIAN LEITH

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Lamb, Q.C., Latiff; George Mathers & Co., Aberdeen

Respondent: A. Brown, A.D.; Crown Agent

26 August 2005

[1] This appeal against sentence follows upon a reference by the Scottish Criminal Cases Review Commission. The matter was the subject of an application to the Commission after leave to appeal was refused in both sifts.

[2] On 8 April 2004 at Inverness Sheriff Court the appellant pled guilty to the following charges, as amended:

"(1) between 7 November 1997 and 7 November 2002, both dates inclusive at 13 Burnside Avenue, Aviemore [and elsewhere in Scotland] you Brian Ralph Leith did cultivate plants of the genus Cannabis in contravention of Section 6(1) of the aftermentioned Act: CONTRARY to the Misuse of Drugs Act 1971, Section 6(2);

(3) between 7 November 1997 and 7 November 2002, both dates inclusive at 13 Burnside Avenue, Aviemore and elsewhere in Scotland you Brian Ralph Leith were concerned in the supplying of a controlled drug, namely Cannabis, a Class B drug specified in Part II of Schedule 2 of the aftermentioned Act, to another or others in contravention of Section 4(1) of the aftermentioned Act and in particular to Anton Thomas Jeffrey Leith; CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

[3] On the same date the sheriff sentenced the appellant to twenty four months imprisonment on charge 1 and twelve months imprisonment on charge 3, the sentences to be served concurrently.

[4] In seeking to refer the matter to this court the Commission were particularly influenced by the view that the sheriff had misdirected himself as to the purpose for which the appellant was cultivating the drug in question. The Commission also based their reference upon the general ground that it was at least arguable that the sentences overall were excessive.

[5] Mr Lamb, Q.C., appearing on behalf of the appellant, adopted the position put forward by the Commission. In particular he referred to the fact that, properly understood, the reason for the cultivation of the cannabis by the appellant related to an attempt to control his epilepsy which was not being achieved by prescribed drugs, and not to any past medical problems he may have had. He also submitted that the sheriff had misdirected himself by distinguishing the case of Cooper v H M Advocate, High Court of Justiciary, 11 January 2000 where he indicated that the quantities involved in this case vastly exceeded those listed in that case.

[6] Mr Lamb therefore submitted that the case was at large for this court and that this court should reduce the sentence, reflecting the fact that the appellant had in fact served a total of 221 days in custody before being released on interim liberation, which was the equivalent of a sentence of fourteen months.

[7] He submitted that the 53 year old appellant, who was married with children, had co-operated in every way with the authorities. He was performing important work in the community and little would be served by returning him to prison.

[8] With both these propositions we agree.

[9] In particular, we are satisfied that the sheriff misdirected himself as a matter of fact as submitted by Mr Lamb as to the reason why cannabis was being cultivated. More importantly, it seems to us that this case, so far for being far removed from Cooper, is very much on all fours with it and did not justify a sentence, or at least the starting point of a sentence, of thirty months which was double that imposed in Cooper.

[10] In these circumstances, and for these reasons, we consider that the sentence of twenty four months in respect of charge 1 should be quashed and one of twelve months substituted. We will not interfere with the sentence of twelve months in respect of charge 3, which will run concurrently with the newly imposed sentence on charge 1. The result of this process is that the appellant has served his sentence and will not be returned to prison.

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