Appellant: M MacKenzie; Burn & McGregor, Aberdeen

Respondent: D Small, ad hoc; the Crown Agent

14 October 2010

Introduction

[1] On 17 June 2010, at Aberdeen Sheriff Court, the appellant pled guilty by way of section 76 indictment to a contravention of Section 4(3)(b) of the Misuse of Drugs Act 1971. The offence had been committed during September of the previous year, when the accused was 39 years of age.

[2] The drug involved in the offence was Cannabis. The accused, by way of his plea of guilty, admitted having kept a package of Cannabis overnight in his flat. It was accepted by the Crown that he had done so for a friend, who he knew had a prior involvement with drugs.

[3] The sheriff's report contains limited information as to the quantity of the drugs and about the nature of the packaging in which the drugs were contained. All we are told is that the drugs were "packaged for onward supply". The weight of the drugs was not specified. Nor was such information available to the court today. It is, however, a matter of agreement (as it was before the sheriff), that the Cannabis had a maximum street value of approximately £5,240. It was also accepted before the sheriff, as it is before this court, that the appellant acted as he did without receiving any financial benefit.

[4] The appellant had two previous convictions libelled against him. Neither was analogous to the charge on the indictment. Both convictions resulted in modest fines.

[5] Having considered the social enquiry report that was available and the submissions he received, the sheriff imposed a sentence of imprisonment of two years. That sentence was discounted from one of three years, on account of the appellant's plea of guilty by way of section 76 indictment. The sentence was ordered to run from the 8 July 2010.

[6] Although the sheriff does not deal in his report with the issue of whether the imposition of a prison sentence was the only appropriate disposal, which section 204 of the Criminal Procedure (Scotland) 1995 Act required him to address, the minutes of the sheriff clerk relating to the hearing on the 8 July 2010 record that the court "having considered the reports...., the nature of the offence, the time at which the plea of guilty was tendered, and in respect that there was no other method of disposal appropriate", imposed the sentence that it did.

Submission

[7] Before this court it was argued, on behalf of the appellant, that having regard to a number of factors, it could not be said that in the particular circumstances of the case a custodial sentence required to be imposed. It was submitted that by imposing such a sentence the sheriff had erred. During counsel for the appellant's submissions, reference was made to the value of the drugs, the limited extent of the appellant's involvement in what happened and the fact that the appellant had acted as he did without financial reward and as a favour for a friend.

[8] The Court was also provided with much fuller detail about the personal circumstances than appears to have been before the sheriff. We were informed that the appellant is now the sole carer for their children, both of whom now attend school. Two or three times a week, the children are taken by the appellant to see their mother in the home in which she resides. We were informed that such visits are of benefit to both the children and to their mother. The appellant has lived in Aberdeen since 1991. Between the early 2000s and 2005 he did so with his wife, who is the mother of their two children. Tragically, during 2005, whilst his wife was pregnant with their second child, she suffered a brain haemorrhage. She was admitted to hospital and she has remained in care ever since. She currently resides at the Sue Ryder Care Home in Aberdeen, where she is likely to remain in the foreseeable future.

[9] Since his wife took seriously ill, the appellant has been responsible for caring for their two children. The only break in his doing so occurred during the two months he spent in custody before being granted interim liberation in connection with the present appeal. We were told that during those two months, the children were looked after by his parents. His parents come from Bangladesh and have now returned to live in that country. We were also informed that there is no other member of the family, who would be available to look after the children were the appellant to return to custody and that were the appeal to be unsuccessful the children would require to be taken into care.

[10] During the course of her submissions, counsel for the appellant recognised that the sentence for a contravention of section 4(3)(b) of the 1971 Act, which related to Class B drugs of a similar value to those in the present case would normally involve the imposition of a custodial sentence. That would be the position unless there were exceptional circumstances that warranted the sentencer taking a different view.

[11] The question which thus arises in the present appeal is whether exceptional circumstances are to be found amongst the information placed before the court. By way of assistance, we were referred to the case of Granger v Higson which is noted in Morrison's Sentencing Practice at para G1.0032.2. That case was decided back in November 2002 and involved a 39 year old married man with a family, whose wife had health problems. The appellant had kept cannabis resin, worth around £500, for a single day for another person, on return for some drugs for personal use. The appellant had 13 previous convictions and had not previously served a prison sentence. The sentence of 6 months imprisonment had been quashed and a community service order of 180 hours was imposed.

Discussion

[12] There is nothing exceptional in the circumstances of this case, as far as the appellant's own conduct and his limited record are concerned. It is not uncommon for offences of this nature, involving the holding of drugs over a short period of time, to be committed for limited, if any, financial reward by offenders who have never previously served a custodial sentence, and who are assessed, as the appellant has been, as being at low risk of re-offending. If exceptional circumstances are to be found, they require to be identified in the appellant's family circumstances.

[13] In addressing this question, the court is fully aware that the appellant's family circumstances did not dissuade the appellant from becoming involved in the commission of this serious offence. However, having given the matter very full consideration, we have come to the view that the appellant's family circumstances do provide a factual basis for holding the sheriff could have refrained from imposing a prison sentence. In our opinion, having regard to the appellant's family circumstances it was open to the sheriff to take the view that custody was not the only appropriate disposal. In reaching that conclusion, we have had particular regard to the welfare of the two children which we assess on the basis of all the information which is now before us.

[14] For these reasons the court is minded to allow the appeal and quash the sentence of imprisonment on the basis that the appellant would be willing to undertake a period of community service of 240 hours.