Appellant: Ogg, Solicitor Advocate

Respondent: McKenna, AD; Crown Agent

26 October 2010

Introduction

[1] On 3 June 2010, the appellant pled guilty at a trial diet to three of the charges on an indictment he faced. Charge (1), libelled a contravention of Section 4(2)(a) of the Misuse of Drugs Act 1971, related to the appellant's production of cannabis at his home address in Barrhead. Charge (3), libelled as a contravention of Section 5(3) of the 1971 Act, also involved cannabis and related to the accused's possession of cannabis at his home address, with the intention of supplying it to others. Charge (4) was a contravention of Section 5(1)(b) of the Firearms Act 1968 (as amended by the Transfer of Functions (Prohibited Weapons) Order 1968 related to the appellant's possession at his home address of a prohibited firearm, namely a taser gun.

[2] The facts placed before the Sheriff by the Crown were limited in extent. On 26 August 2009, whilst acting under a search warrant, police officers forced entry to the appellant's home address in Barrhead. The appellant was found within the premises and co-operated with the police. The police officers discovered (a) 36 cannabis plants, (b) various items of drugs paraphernalia, including a set of scales, 600 watt light bulbs and plastic bags, and (c) a taser gun. The appellant admitted to the police officers that the plants were cannabis plants. On being taken to Helen Street police station in Glasgow, the appellant confirmed his earlier admissions. He explained to police officers that his intention in growing cannabis had been to engage in social supply, during which he supplied quantities of cannabis to acquaintances for £20. It was a matter of agreement that each cannabis plant was worth approximately £100, giving a total value for the plants recovered amounting to £3,600. The appellant explained his possession of the taser gun to the police as follows. Some time previously his home had been broken into. People carrying knives had entered his house through a window and had threatened him. Subsequently he had acquired the taser gun for self defence.

[3] In respect of charge (1) on the indictment, the Sheriff imposed a sentence of 8 months imprisonment, reduced from 9 months on account of the plea of guilty; and on charge (3), a sentence of 10 months imprisonment was imposed, reduced from 12 months on account of the plea of guilty. The Sheriff ordered those two sentences should run concurrently. In relation to charge (4) the Sheriff imposed a sentence of 4 months imprisonment, reduced from 5 months imprisonment on account of the plea of guilty. The Sheriff ordered that sentence should run consecutively to the other two sentences, giving rise to a total sentence of 14 months imprisonment.

Submissions

[4] In arguing the appeal, Miss Ogg submitted that the Sheriff had erred in imposing prison sentences on each of the charges and that, in any event, the sentences imposed were all excessive. In relation to charges (1) and (3) she stressed that the appellant's involvement with cannabis had been limited to providing a social supply of the drug to friends and acquaintances. In doing so, the appellant had not been involved in seducing others into taking up the use of cannabis. The operation upon which he had been engaged had not been a sophisticated one. The appellant had no analogous convictions for drugs offences and had not previously served a prison sentence. Relying on a number of cases which she cited to us, Miss Ogg invited us to quash the prison sentences on those charges. The cases to which she referred were Henderson v HM Advocate 1996 SCCR 71; and Robertson v Perry 1998 SCCR 599, both of which had been mentioned by the Sheriff in his report to this court, and Anderson v HM Advocate 11 November 1997, Morrison Sentencing Practice G8.0005; and Morrison v Dalrymple 10 December 2009, Morrison's Sentencing Practice G8.007.01; and Baird v Cottam 12 December 2009, Morrison's Sentencing Practice G8.0007.02. Miss Ogg accepted, however, that the case of Slaven v Speirs 2005 SCCR 308 supported the view that a custodial sentence was appropriate on drugs charges of the nature of charge (3).

[5] Turning to charge (4) involving the taser gun, Miss Ogg explained that the taser gun in question was one which could only deliver an electric charge to another person if it was placed against that other person's body. The taser gun had been designed to be used in self-defence and as a torch. It had been acquired by the appellant for use in self-defence. He had only intended to use it by presenting it at and threatening intruders, not for the infliction of any charge to any such intruder. It was confirmed that the appellant had acquired the taser gun following upon the difficulties he had experienced in the past. In the event, on the day on which the taser gun had been recovered by the police, the battery of the gun had been exhausted and no charge could have been delivered by the taser gun. In seeking to persuade us that a prison sentence was not required for this charge either, Miss Ogg referred us to Avis and Others [1998] 2 Cr.App.R.(S.) 178, which set out a series of four questions which the court ought to consider when dealing with a firearms offence. In that case, the Court of Appeal in England, presided over by Lord Bingham of Cornhill CJ, defined the questions along the following lines:

1. What sort of weapon was involved?

2. What (if any) use had been made of the firearm?

3. With what intention (if any) did the defendant possess or use a firearm? and

4. What was the defendant's record?

Miss Ogg accepted that the weapon in the present case was a firearm which fell within the first question and was also caught by the third question, in that it was a genuine firearm which was capable of being used. Reference was also made to R v Robert Stewart Manning [2005] EWCA Crim 1205. She submitted, however that the taser gun did not look like a gun and that any person threatened with it would think it was a taser. In support of that submission she produced copies of a police forensic scientist's report on the taser gun recovered from the appellant and of advertisements marketing the sale of 1200 KV bodyguard stun guns, which had been printed from the internet. Such taser guns, commonly referred to as "stun guns", are oblong in shape. They incorporate a torch with a glass lens at one end of the gun. Two short metal electrodes protrude from the end of the taser gun, on either side of the lens. The forensic scientist's report explains the function of a stun gun in the following terms:

"A stun gun is a hand held, battery powered, non-lethal self defence device designed to produce an audible and visible deterrent display of sparks when operated in open air and, when pressed against the human body and activated, to administer a shock sufficient to cause temporary incapacitation. Stun guns produce high voltage, short duration pulses."

[6] More generally, Miss Ogg addressed us on the appellant's background. This is fully dealt with in the Social Enquiry Report and is carefully summarised in the Sheriff's report to this court. The appellant has obviously suffered a number of personal misfortunes in life, including the deaths of both of his parents when he was at an early age; being cared for by his two siblings whilst they were still teenagers; spending a period in foster care; and in being made redundant by Renfrewshire Council, after a series of employments which justified the submission that he was a man with "a good track record of employment". The appellant had also suffered health problems which had led to his losing his home and his possessions.

[7] Miss Ogg stressed that the Social Enquiry Report had assessed the appellant as being suitable for the imposition of a community service order or probation. She pointed out that prior to gaining interim liberation, the appellant had served the equivalent of 5 months imprisonment. Following his release from custody, he had gone to stay with his sister and was actively looking for employment. He no longer used cannabis.

Discussion

[8] In his report, the Sheriff comments in some detail on the grounds of appeal. Having considered the terms of that report, we are quite satisfied that the Sheriff was entitled to take the view that, in respect of all three charges, no sentence other than the imposition of a prison sentence would have been appropriate. We have come to that conclusion notwithstanding the mitigatory factors, relating the appellant's background, which exist.

[9] In our opinion the Sheriff required to take a serious view of all three charges to which the appellant pled guilty. Charges (1) and (3) involve cannabis of up to £3,600 in value, which was being cultivated with the intention of it being supplied to others for payment. The sums involved may not have been substantial but undoubtedly this was a commercial operation. Having reviewed the various authorities cited to us by Miss Ogg, we are not persuaded that the sheriff erred in reaching the conclusion a custodial sentence was the only appropriate disposal in respect of each drugs charge. Both Henderson v HM Advocate and Robertson v Perry support the approach the Sheriff adopted. So also does the case of Anderson v HM Advocate. Whilst custodial sentences were quashed in Morrison v Dalrymple and Baird v Cottam, in the first of these cases the appellant's role appears to have been limited to watering cannabis plants owned by a third party and in the second case it appears to have been accepted that the appellant's production of cannabis had been for his own use. Accordingly the present case can be distinguished on its facts from the facts of both of these authorities.

[10] For different reasons, we consider the charge relating to the possession of a taser gun to be serious. A taser gun is designed to be used as a weapon. It can be used to threaten others and has the potential of delivering an electric shock. The taser gun was acquired by the appellant with the intention that he would use it to threaten others. Whether or not a person to whom a taser gun is presented knows that it is a taser gun, as opposed to some other form of weapon, such person is liable to feel threatened that the weapon may be used to inflict personal injury, if only of limited duration. For that reason, the possession of a taser gun is not the type of offence which the courts can treat as a minor matter. In such circumstances it cannot be said that the sheriff erred in reaching the view that the imposition of a custodial sentence was the only disposal that was appropriate in respect of charge (4).

[11] We have, however, reached the conclusion that the sentences imposed on charges (1) and (3) were excessive. Having regard to the appellant's background, the fact that he had not previously served a custodial sentence and the factual circumstances relating to the commission of those charges, which were not disputed by the Crown, we have decided to reduce the sentence on each of the charges to a net sentence of 6 months imprisonment, being 7 months reduced to 6 months. The sentences will run currently with each other. When added to the sentence of 4 months imprisonment on charge (4), which we do not intend to interfere with and which will run consecutively to the sentences on charges (1) and (3), the appellant's total sentence will be reduced to one of 10 months imprisonment.