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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Purvis & Anor v. Procurator Fiscal [2005] ScotHC HCJAC_133 (30 November 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_133.html
Cite as: [2005] ScotHC HCJAC_133, [2005] HCJAC 133
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Purvis & Anor v. Procurator Fiscal [2005] ScotHC HCJAC_133 (30 November 2005)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Osborne Lord Kingarth
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[2005HCJAC133] Appeal Nos: XJ1839/04 XJ1861/04 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEALS AGAINST SENTENCE by (1) DOUGLAS PURVIS and (2) DUNCAN PRYDE Appellants; against (1) PROCURATOR FISCAL, Selkirk and (2) PROCURATOR FISCAL, Peebles Respondents: _______ |
Appellants: (1) J. Keenan, solicitor advocate; Wardlaw Stevenson & Allan:
(2) Shead; Adams Whyte
Respondents:
Ms. A. Graham, A.D.; Crown Agent30 November 2005
[1] The appellants have appealed against the fines imposed on them in the Scottish Borders District Court at Selkirk on 28 October and at Peebles on 4 November 2004 in respect of charges of contravention of section 5(2) of the Misuse of Drugs Act 1971. Their appeals have been remitted to a court of three judges in order that it may consider the implication of the practice of justices using sentencing guidelines which have been devised for that court. [2] In the case of the appellant Purvis, herbal cannabis (treated as a class B drug) with a street value of approximately £3 was found by police at his house. In the course of her report to this court the justice of the peace states that, having regard to the guidelines used in that court to ensure consistency in sentencing, under which a multiplier relative to the street value of the drugs is added to a basic fine, a fine of the order of £165 would normally be considered for an offence of this nature. Having regard to all the facts in the case, she felt it appropriate to impose a fine, but because of the small amount of drugs involved, she reduced the amount which she would otherwise have imposed. She considered that, in all the circumstances, a fine of £100 was appropriate and stated in court that she was restricting the fine to that amount, payable at the rate of £5 per fortnight. [3] In the case of the appellant Pryde, cannabis resin (treated as a class C drug) if with a street value of approximately £110, along with a set of scales, was found by police at his house. The justice of the peace states in his report that according to the guidelines used in that court, a multiplier of five times the street value of the drugs was added to a basic fine, which for class C drugs was £100. He points out that the guidelines produced only guide figures, leaving the presiding justice full flexibility to vary the penalty imposed, having regard to the circumstances of the offence, the means of the offender and any other relevant circumstances. In this case the value of drugs was relatively high, and, applying the guidelines, the fine baseline for consideration would have been £100 plus £550, giving a total fine of £650. Given that the appellant had pled guilty at the first opportunity and was seeking medical help to remedy his cannabis usage, he considered it appropriate to apply at discount of 50% to the "basic fine" element and approximately 20% to the "multiplier" element, and imposed a restricted fine of £500, payable at £50 per month. [4] In understanding the background to the use of these guidelines we have had the assistance provided by notes prepared for the information of this court by the District Court manager, along with a copy of the text of the guidelines themselves. It appears that, following the reorganisation of local government in 1996, the four district courts in the Borders were amalgamated to form Scottish Borders District Court. It sat in four divisions corresponding to the original commission areas. In each division there was a subcommittee of justices, which met for the purposes of training and discussing matters of common concern. Three justices from each of the divisions served on a justices committee for the whole district. With a view to achieving consistency in sentencing, the subcommittees met in private and made representations as to guidelines for sentencing. This led to the issuing by the justices committee in March 2001 of a document headed "Sentencing Guideline Levels - Non Speeding", to which the reports of the justices in the present cases refer. [5] The document contains a table of a number of offences commonly encountered in the district court. In the case of each offence there is a stated "fine baseline (where the mitigating circumstances apply)". For the possession of class B drugs it is a fine of £150 plus 5 times the value of the drugs (We understand that for class C drugs it is the same). One of the explanatory notes states that the indicative figures are based on a fine disposal where mitigating circumstances apply, and that if aggravating circumstances are involved, the baseline level should be increased as considered appropriate in the individual circumstances. Another explanatory note states that the means of the offender are also of importance in considering fine levels, and that the appeal court has consistently indicated that instalment payments should be limited to a period of around 12 months. It is also stated in block capitals that each individual case must be considered on its individual merits in the light of its particular circumstances and the means of the offender. Attached to the table is a list of "aggravating and mitigating factors which affect sentencing levels". This is followed by a list of factors under the heading "consider offenders circumstances" [6] Although in each case the justice modified the figure which resulted from the application of the guidelines, it is clear that the justice took the guidelines into account and that the figure had some influence on the reasoning by which the fine was arrived at. Mr Shead, who appeared for the appellant Pryde, submitted that only the High Court had been given the power to pronounce an opinion "on the sentence ...which is appropriate in any similar case" (see sections 118(7) and 189(7) of the Criminal Procedure (Scotland) Act 1995), to which courts are bound to have regard, in accordance with section 197. It followed, he said, that the sentencing guidelines which had been issued for use in Scottish Borders District Court were unlawful. [7] We find it unnecessary to reach a concluded view as to whether these sentencing guidelines were unlawful since the way in which they were used in the present cases was, in our opinion, objectionable. The basis on which judicial decisions are likely to be taken should, so far as possible and certainly on a matter such as this, be open to discussion in court, on the principle that justice should not only be done but should be seen to be done. The guidelines were devised in private, and, as we understand, were not published. More importantly, it was not made known to either appellant that they would be likely to be taken into account. In these circumstances we consider that the manner in which the fine was arrived was, in each case, not in accordance with natural justice. [8] We have then to consider what disposal is appropriate in these cases. Mr Keenan, who appeared as solicitor advocate for the appellant Purvis, emphasised that the quantity of the drugs had been very small. The appellant was in receipt of state benefits at the rate of £105 per fortnight. He did voluntary work and attended a college. There was merit in the suggestion which was made to the justice that sentence be deferred for him to be of good behaviour. In any event the amount of the fine was excessive. In the case of the appellant Pryde, it was maintained that the justice had attached too much gravity to the offence. Mr Shead emphasised the fact that he had tendered a plea of guilty at an early stage. [9] We are not disposed to consider that a fine was not appropriate in the case of either appellant. As regards the amount of the fines we consider, without reference to the sentencing guidelines used by the justice, that neither can be said to be excessive, having regard to the circumstances of the particular case, including the early pleas. We will accordingly refuse the appeals. [10] Before parting with the appeals we should add the following observations. We do not doubt that the aim of promoting consistency in sentencing is a worthy one, and that there is much to be said for an appropriate body deliberating on, and arriving at, recommendations or suggestions as to the range within which sentences of a certain type would generally fall. Such recommendations or suggestions might in due course be endorsed by the High Court by reference to sections 118(7) and 189(7) of the 1995 Act. However, such an endorsement would depend on a number of considerations, such as whether they were preceded by consultation, whether they had been publicised and whether in themselves they appeared to be satisfactory. [11] In connection with the last of these points we should refer to the content of the guidelines with which the present appeals are concerned. We do not doubt that the guidelines before us were produced in good faith as a means of assisting in consistency in sentencing. However, they appear to us to have a number of shortcomings. As was pointed out in the course of discussion, they say nothing about any form of disposal alternative to the imposition of a fine. Furthermore in most cases they do not offer a range of financial penalties but appear to prescribe a particular fine. In our view they might be thought to encourage an undesirable restriction of choice. In the case of drugs, there is the calculation based on the value of the drugs to which we have referred earlier. There is nothing to explain, let alone to justify, this arithmetic as a means of doing justice in the individual case. We find it puzzling that the indicative figures are based on an assumption that "mitigating circumstances" apply. It is not clear what is meant by "mitigating circumstances". It is virtually impossible to identify mitigating circumstances without regard to the context of the particular offence committed by the particular offender. We therefore wonder how a justice would know when the mitigating circumstances in the case before him or her went beyond what had already been allowed for. In addition it is not clear whether the list of factors attached to the table are intended to be exhaustive, or whether they should always be treated as aggravating or mitigating the sentence which would otherwise be appropriate. In short we consider that the guidelines are not satisfactory for use by the justices.