Appellant: Wade, Q.C.; Crown Agent

Respondent: Bryce, Sol Adv; Cairns Brown, Dumbarton

25 September 2013

[1] The respondent in this Crown appeal against sentence, James East, pled guilty under the section 76 procedure before the Sheriff Court at Dumbarton to a charge that on 14 March 2013 at an address in Clydebank and elsewhere he did have in his possession a controlled drug namely Diamorphine, a Class A drug specified in Part I of Schedule 2 to the Misuse of Drugs Act 1971 with intent to supply it to another or others.

[2] On 12 June 2013 the sheriff sentenced him to a period of 13 months imprisonment discounted from a starting point of 18 months to reflect the early plea of guilty. She backdated this sentence to 15 March 2013. The Crown have appealed to this court against that sentence as being unduly lenient. The test for the court to regard a sentence as unduly lenient is a relatively high test, as set out in HMA v Bell 1995 SCCR 244.

[3] In the particular circumstances of this case we have had little difficulty in reaching the view that the sentence of the sheriff was unduly lenient and that the high test set out in Bell has been met.

[4] We have reached that conclusion essentially for two reasons. First having regard to the circumstances of the offence. This was a charge of possession with intent to supply a Class A drug to a not inconsiderable value, the drugs having a maximum street value of about £1,500. Second, having regard to the respondent's bad schedule of previous convictions, which discloses several analogous offences, stretching back to 1994. He was convicted in February 1994 of section 5(2) of the Misuse of Drugs Act. In November 1994 he was convicted of another contravention of the same section. In March 1998, he was convicted before a sheriff and jury at Dumbarton of contravention of section 4(3)(b) of the same Act. In April 2003 he was convicted before a sheriff and jury of contravention of section 4(3)(a) of that Act and sentenced to imprisonment for 3 years. In November 2004, he was convicted of contravention of section 5(2) of that Act involving Diamorphine. In August 2006 he was convicted of contravention of section 4(3)(b) of that Act, again involving Diamorphine and sentenced to imprisonment for 8 months. In January 2009, he was convicted of contravention of section 5(2) of that Act involving Cocaine. Lastly on 22 January 2010 he was convicted before a sheriff and jury at Dumbarton of two charges of section 4(3)(b) of that Act each involving heroin and a charge of section 5(3) of that Act also involving heroin and he was sentenced to 41/2 years imprisonment on each of these charges backdated to 19 October 2009. That is an appalling record of analogous previous convictions and we do not consider that the sheriff attached sufficient weight to it.

[5] In all these circumstances, we consider that the starting point adopted by the sheriff of 18 months imprisonment was unduly lenient. We shall accordingly quash the sentence of the sheriff and substitute a sentence of 26 months imprisonment, that being discounted from a starting point of 39 months imprisonment to reflect the early plea of guilty. As the sheriff did, we shall backdate that sentence to 15 March 2013.

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