Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Slaven v. Procurator Fiscal [2005] ScotHC HCJAC_54 (09 March 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_54.html
Cite as: [2005] HCJAC 54, [2005] ScotHC HCJAC_54

[New search] [Help]

Slaven v. Procurator Fiscal [2005] ScotHC HCJAC_54 (09 March 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord Hamilton

Lord Emslie

[2005HCJAC54]

Appeal No: XJ1407/04

OPINION OF THE COURT

delivered by LORD HAMILTON

APPEAL

JAMES SLAVEN

Appellant;

against

PROCURATOR FISCAL, Airdrie

Respondent:

_______

Appellant: Gilchrist; Drummond Miller

Respondent: McConnachie, A.D.; Crown Agent

9 March 2005

[1] The appellant was convicted after trial in the Sheriff Court at Airdrie of having, on 22 February 2003 at St. Mungo's Walk, Cumbernauld, had in his possession a controlled drug with intent to supply it to another or others, contrary to section 5(3) of the Misuse of Drugs Act 1971. The controlled drug in question was the Class A drug commonly known as Ecstasy. He was sentenced to 10 months imprisonment.

[2] Leave to appeal against sentence having initially been refused by a single judge, the appellant appealed against that refusal. Tendered with the letter of appeal were précis of certain decisions of this court, in some of which appeals against custodial disposals on conviction of offences under section 5(3) or section 4(3)(b) of the 1971 Act, where the controlled drug in question was Ecstasy, had been allowed and non-custodial disposals substituted. Against that information the appeal judges granted leave to appeal in this and in another contemporary case (Irvine v. P.F. Dornoch), with a view to consideration being given to the sentencing issues arising in cases of this kind. In the event, this appeal and that in Irvine v. P.F. Dornoch were heard together by a bench of three judges.

[3] In the early hours of 22 February 2003 the appellant emerged from a nightclub in Cumbernauld. He was recognised by two police officers who suspected that there was a warrant for his apprehension outstanding. A check having confirmed that suspicion, the appellant was arrested. Prior to his removal from the scene, he endeavoured surreptitiously to pass to a young woman a polythene wrap which had been in his trouser pocket. On investigation that wrap was found to contain 34 Ecstasy tablets.

[4] The appellant, who at the time of the offence was 21 years of age, had previously been convicted (in November 1999) of contraventions of section 23(4)(a) and section 5(2) of the 1971 Act (intentionally obstructing a constable in the exercise of his powers under that statute and simple possession of controlled drugs), in respect of which financial penalties had been imposed. He had additionally a number of non-analogous convictions. He had not previously been sentenced to detention or imprisonment.

[5] In support of the appeal Mr. Gilchrist for the appellant relied upon the appellant's personal circumstances, including certain mental health difficulties. He reminded the court that the offence had occurred more than 2 years ago and stated that the appellant had not since offended. The matter in respect of which a warrant had been outstanding at the time of his arrest had in the end resulted in an admonition. Mr. Gilchrist placed before the court copies of the short judgments pronounced in each of the four cases, précis of which had been provided at the stage when leave to appeal had been sought and granted. These were Mehigan v. P.F. Glasgow (20 January 2004, briefly reported as Mehigan v. Dyer at 2004 G.W.D. 6-111), Hobson v. P.F. Dunoon, 20 May 2004, Forrester v. H.M. Advocate, 21 May 2004, in each of which a custodial disposal in the Sheriff Court had been quashed and a community service order substituted, and Seetul v. P.F. Paisley (17 March 2004), where a 6 month sentence of imprisonment had been affirmed. Each had involved the appellant being found in possession of Ecstasy tablets (74, 44, 79 and 35 respectively) in circumstances giving rise to an offence under either section 5(3) or section 4(3)(b) of the Act; the particular circumstances otherwise varied as among the respective appellants. Mr. Gilchrist acknowledged that the general principle in cases of this kind was to be found in H.M. Advocate v. Lee 1996 S.C.C.R. 205 but, he submitted, the cases cited illustrated that a custodial disposal was not inevitable. In any event, the length of sentence selected by the sheriff was excessive. The appellant was now taking medication for his mental health difficulties. He had a reasonably firm offer of employment in Ireland.

[6] In H.M. Advocate v. Lee this court allowed a Crown appeal against a non-custodial sentence which had been imposed in the High Court upon a young man, aged 18 at the time of the offence and with no previous criminal record, who had pled guilty to having been concerned, in contravention of section 4(3)(b) of the 1971 Act, in the supplying of Ecstasy. A period of 4 years detention in a Young Offenders Institution was substituted. The appellant had been apprehended in the vicinity of a discotheque in Saltcoats in possession of 19 Ecstasy tablets and of £590, the latter being inferred to have been the proceeds of earlier sales of 59 Ecstasy tablets. In its Opinion, delivered by Lord Justice-General Hope, this court stated at page 212F that the observation by Lord Justice-Clerk Ross in H.M. Advocate v. McPhee 1994 S.C.C.R. 830 provided clear guidance as to what was appropriate in the case under appeal. The Opinion continued:

"He [the Lord Justice Clerk] issued a plain warning to the public, and guidance to sentencers generally, about the way in which offences of the kind which the respondent committed in this case would require to be dealt with by the court. The requirement is for an immediate and substantial custodial sentence, to punish the defender, to deter others and to protect the public. It is only if there are strong mitigating circumstances that any other disposal will be appropriate".

At pages 212G-213B the court added:

"It has not been suggested in this case that there were any circumstances which could be described as strong mitigating circumstances. [Affirmation of the trial judge's disposal] would also be contrary to the sentencing policy which this court has felt obliged to follow in the public interest in order to do what it can to deter and punish those who engage in the supply to others of Class A drugs. This is the only way in which the court can fulfil its responsibility to the public in these cases. It must be brought home to those who engage in this activity for their own gain, or who may be tempted to do so, that the offence of trafficking in Class A drugs is a very serious one. The supply of these drugs, especially to young people frequenting a disco, is an evil practice, in view of the risks which are faced by those who take these dangerous drugs in such circumstances. The court must deal severely with these cases and normally a substantial custodial sentence will be inevitable".

[7] Mr. Gilchrist did not dispute that the general policy considerations there discussed in respect of the sentencing of those convicted of dealing in Class A drugs (including Ecstasy) were as applicable today as they were when they were pronounced in December 1995. In our view they remain applicable. Nothing has occurred, in terms either of the potential harm attendant on the abuse of such drugs or of public perception of the evils associated with dealing in them, to justify this court departing from these policy considerations. Of course, each case will require to be considered and disposed of in the particular circumstances of the offence and of the offender. Where the particular offender has not previously been sentenced to imprisonment or detention, the restrictions imposed by section 204(2) or 207(3), as the case may be, of the Criminal Procedure (Scotland) Act 1995 will apply. A custodial disposal is not inevitable but courts in dealing with such cases will require to bear in mind, among other sentencing considerations, the policy clearly set forth in Lee.

[8] It is unnecessary to attempt an analysis of the four particular cases, précis of which were tendered when the present case was granted leave to appeal. To some extent at least they depended on their own particular facts and circumstances. It is, however, appropriate to observe that, of the very many cases noticed in Morrison - Sentencing Practice in respect of offences under section 4(3)(b) or section 5(3) involving Class A drugs, very few have been disposed of on a non-custodial basis.

[9] We are not persuaded that in the circumstances of the present case the sentence of 10 months imprisonment imposed by the sheriff was excessive. The appellant was found in the vicinity of a nightclub with a significant number of Ecstasy tablets in his possession with intent to supply them to another or others. The sheriff took into account the personal circumstances of the appellant as they then existed. Subsequent events are not such as, in our view, to warrant interference with the sheriff's disposal, either as to its nature or its extent. This appeal has accordingly been refused.