APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: XJ1407/04
OPINION OF THE COURT
delivered by LORD HAMILTON
PROCURATOR FISCAL, Airdrie
Appellant: Gilchrist; Drummond Miller
Respondent: McConnachie, A.D.; Crown Agent
9 March 2005 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.  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.  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.  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.  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.  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".