Scottish High Court of Justiciary Decisons

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Irvine v. Procurator Fiscal [2005] ScotHC HCJAC_53 (09 March 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_53.html
Cite as: [2005] HCJAC 53, [2005] ScotHC HCJAC_53

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Oliver Irvine v. Procurator Fiscal Dornoch [2005] ScotHC HCJAC_53 (09 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne  Lord Hamilton  Lord Emslie	[2005HCJAC53] Appeal No: XJ1406/04 OPINION OF THE COURT delivered by LORD HAMILTON in APPEAL by OLIVER IRVINE Appellant; against PROCURATOR FISCAL, Dornoch Respondent: _______



 



 

Appellant: Wheatley, Solicitor Advocate; Wheatley & Co.

Respondent: McConnachie A.D.; Crown Agent



9 March 2005

[1]      The appellant pled guilty in the Sheriff Court at Dornoch to having, on 10 October 2003, had in his possession 20 Ecstasy tablets with intent to supply them to another or others in contravention of section 5(3) of the Misuse of Drugs Act 1971 (charge (3) on the complaint). He also pled guilty to an offence under the same subsection in respect of a quantity of cannabis resin (charge (4) on the complaint). His plea of not guilty to charges (1) and (2) was accepted by the Crown. The sheriff sentenced the appellant to 6 months detention in a Young Offenders Institution in respect of charge (3) and to 3 months concurrently on charge (4).

[2]      At the time of these offences the appellant was 19 years of age. In the afternoon of 10 October 2003 he was, on the basis of information received, detained by police officers when outside his house. He was taken, along with a backpack in his possession, to the local police station. He there advised the officers that there were items of relevance in the backpack. Within it the officers found a bar of cannabis resin weighing 127.12 grams. When asked what it was the appellant replied - "It's half a nine bar. There is more in the inside jacket pocket". On a search of that jacket the police found a further 2.6 grams of cannabis resin. They also found there, in a small bag, the 20 Ecstasy tablets. In respect of the latter the appellant stated: "They're not mine. I don't deal". At a subsequent interview the appellant told police officers that he had purchased the Ecstasy tablets for £80 but intended to resell them at the same price. As regards the cannabis resin, he indicated to the police officers that he knew what it was but that he was merely delivering it to another for a favour.

[3]      At the sentencing diet the sheriff was advised by the procurator fiscal that the total value of the drugs recovered was about £653. The solicitor then appearing for the appellant confirmed that the appellant's position as regards the cannabis resin was as admitted to the police officers. As regards the Ecstasy, he stated that the tablets had been purchased for another and were to be delivered by the appellant to that person without financial gain on his part. The appellant regarded the matter as "simply doing a favour for one of his friends".

[4]      The social enquiry report obtained before sentencing recorded that the appellant stated to the social worker that, while in Inverness, a friend requested him to deliver the Ecstasy and cannabis to another friend who resided in Dornoch. The appellant had two previous non-analogous minor convictions. He was due to embark on a college course. The sheriff nonetheless took the view that the offence in question could only be disposed of by the imposition of a custodial sentence. He took into account the circumstance that courts in the Highlands had repeatedly stated that the supply of drugs would be dealt with severely and that to some extent the young people in that part of the country had been protected from the ravages of drug taking which had blighted other parts.

[5]      Mr. Wheatley, solicitor advocate, who appeared before us on behalf of the appellant, submitted that in all the circumstances a custodial disposal was not appropriate; in any event, the length of the detention imposed was excessive. He contended that, having regard to the quantity of the drugs involved, the circumstances of the appellant's involvement (including its "non-commercial" character) and the appellant's other circumstances, a non-custodial disposal was appropriate. He referred to Perkins v. McFadyen 2001 S.C.C.R. 264 (where a non-custodial disposal had been substituted in circumstances where a plea of guilty had been tendered to a non-commercial offence involving cannabis resin) and to Mehigan v. Dyer 2004 G.W.D. 6-111. Moreover, the sheriff had made no reference to the circumstance that the appellant had pled guilty to the charges; he had apparently failed to take that factor into account.

[6]      This appeal was heard along with that in Slaven v. P.F. Airdrie. Mr. Wheatley submitted, somewhat tentatively, that the attitude of the courts had, as regards Ecstasy, been modified to some extent since the decision in H.M. Advocate v. Lee. We are unable to accept that submission. For the reasons which we have indicated in Slaven v. P.F. Airdrie the principle enunciated in H.M. Advocate v. Lee remains as applicable today as it did in December 1995 when that decision was made. The sentencing considerations which arise in the present case are, in broad terms and subject to their respective individual circumstances, the same as those we have identified in the case of Slaven.

[7]      Subject to one matter, the sheriff's approach to the disposal of the present case is not, in our view, open to valid criticism. The appellant, albeit not for personal profit, was a willing link in the chain of supply of controlled drugs, including a Class A drug, from one dealer to another. However, the sheriff did not, at least evidently, take into account in mitigation of penalty the circumstance that the appellant had pled guilty at the first diet to the charges now subject to appeal. To give effect to that consideration we have allowed this appeal to the extent of reducing the sentences of 6 months and 3 months detention to 41/2 months and 2 months respectively.