APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord CarlowayLord Menzies
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Appellant: D Taylor, solicitor advocate; Gilfedder McInnes
Respondent: Hughes, A.D.; Crown Agent
9 May 2012
[1] On the 5 January 2012, at the Sheriff Court in Glasgow, the appellant pled
guilty to being concerned in the supply of Cannabis Resin contrary to
section 4(3)(b) of the Misuse of Drugs Act 1971 at an address in Dixon Avenue. The offence occurred in
November 2010. On 2 February, the appellant was sentenced to
6 months imprisonment (reduced from 9 months for the early plea). A
co-accused, who had also pled guilty to a contravention of
section 4(3)(b), was sentenced to 12 months (reduced from
18 months).
[2] The circumstances were that the appellant had
arrived at the co-accused's flat at a time when it was being searched by the
police. As a result, his own flat was searched and 25 foil wraps of Cannabis
Resin were found, each weighing 6.6 gms and having a total value of £375. The
appellant admitted that they were for onward sale with a view to funding his
own habit. He had bought a batch of the drug for £500.
[3] In contrast, the co-accused had a far
greater quantity of Cannabis Resin. It had a wholesale value of £6,500 and an
onward supply value of about £16,500. In addition, the co-accused was found
with £4,715 in cash. His plea involved concern in the supply over a period of
some 6 months. The appellant's plea related only to concern on one day in
his own flat.
[4] The appellant is aged 50 and single.
He has been out of work for some 3 years. He lives in a bedsit. He is a
regular (that is to say daily) Cannabis user. He has also been a consumer of
excessive amounts of alcohol in the past, to which the Cannabis appears to be some
form of substitute. The court has had regard to a report from his medical
practitioner in that regard. He does have two previous convictions, one
serious one for assault and robbery in 1978 and one for breach of the peace in
1994. These are essentially of historical interest only.
[5] In selecting custody as the only
appropriate disposal, the sheriff took the view that the quantity of Cannabis
Resin involved in the appellant's case went beyond social or small scale
supply. He selected the period of 6 months as representing half the
sentence given to the co-accused. It was submitted that a custodial sentence
was not the only one available and that a community based disposal might have
been chosen instead. In that regard the focus was on the limited amount of the
drug involved and the date and place in the libel. In relation to
the extent of the supply, it was submitted that, although it was accepted that it
went beyond social or small scale, the purpose of it was accepted to be to fund
the appellant's own habit and the court proceeds on that basis. A subsidiary
point related to comparative justice. It was submitted that the difference
between the sentences of the two accused did not adequately reflect the
comparative seriousness of each offence.
[6] The court considers that there is force in
both of these submissions. Having regard to the limited amount of the drug
involved and the appellant's lack of significant criminal offending for some
considerable time, although custody was one option to be considered by the
sheriff as this did involve commercial supply of Cannabis Resin, the court does
not consider that it was the only appropriate sentence available. Secondly,
and in addition, the court considers that the difference between the two offences
was not adequately differentiated in the sheriff's sentencing or relative
reasoning. In this regard, it may be said that the sentence on the co-accused,
for prolonged commercial supply, appears lenient. For these combined reasons,
instead of the custodial period, the court will, impose instead a period of
probation for 18 months. It will make it a condition of that probation
that he engages in 240 hours of unpaid work in the community.
jaw