Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 40

HCA/2015/780/XC

Lord Justice Clerk

Lord Malcolm

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

SCOTT DAVID DARROCH

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: A Ogg, Solicitor Advocate; Gilfedder & McInnes (for Bruce McCormack, Motherwell)

Respondent: Carmichael AD; the Crown Agent

29 April 2015

[1]        On 5 January 2015, the appellant pled guilty, at a First Diet in the Sheriff Court at Kilmarnock, to two linked charges that, at an address in Skelmorlie on 2 February 2014, he produced a controlled drug, namely cannabis (a Class B drug) contrary to the Misuse of Drugs Act 1971, section 4(2)(a) and was also concerned in the supply of that drug, contrary to section 4(3)(b) of the same Act.  On 23 February 2015, the sheriff sentenced him to 3 years imprisonment; discounted from 4 years for the early plea.

[2]        The circumstances were that, on 2 February 2014, the police went to the appellant’s home, which was an isolated cottage, in relation to other matters.  The appellant met the police at the door, which he closed behind him.  This did not conceal the strong odour of cannabis.  He was detained under section 23 of the 1971 Act, having refused the police permission to enter without a search warrant.  That warrant was obtained.  The search revealed cannabis plants growing in four areas, with associated cultivation equipment.  There were 150 plants in total; some 50 being near maturity and 100 more in a propagator.  Not all of these would have produced the desired product.  The total value was ultimately not disputed and estimated at between £20,000 and £30,000.  When interviewed, the appellant made “no comment”. 

[3]        It was agreed before the sheriff that the cultivation and supply were not on a “commercial scale”, in the sense of being intended to produce profit.  Rather, the production was partly for the appellant’s own use and partly for use by some ex-military friends, who contributed to his cultivation costs. 

[4]        The sheriff considered the CJSWR and a report from a psychologist.  This material revealed a history of service in the Royal Engineers from 2006 to 2009, in Kosovo, Iraq and Afghanistan.  The psychological report, in particular, described his disturbing experiences in these countries and explained the diagnosis of Post Traumatic Stress Disorder, which he has.  The CJSWR suggested a Community Payback Order, as a direct alternative to custody, including a requirement of 300 hours unpaid work in the community despite the appellant’s current mental health difficulties.  However, having regard to the guidelines of this court, as contained in, for example, Lin v HM Advocate 2008 JC 142 and McCreadie v HM Advocate [2013] HCJAC 146, the sheriff did not consider that such a disposal was appropriate.  The sheriff had in mind a sentence ranging between 4 to 5 years, but, taking account of the special circumstances of the appellant, she determined that a headline sentence of 4 years was appropriate, which was discounted to 3 years, having regard to the timing of the plea. 

[5]        The submission made was that a custodial sentence was not the only appropriate disposal, set against the exceptional circumstances stemming from the appellant’s military background and history of recent mental health problems. 

[6]        The court has considerable sympathy for the appellant and his current predicament following the traumatic experiences which he has had in the service of his country abroad.  Nevertheless, as the sheriff notes, this was a significant cultivation of considerable value, notwithstanding the limited distribution network.  In these circumstances a custodial sentence was the only appropriate disposal for this value of drug.  There were, however, substantial mitigating factors.  The agreed lack of commercial enterprise removes the case from the guideline in Lin v HM Advocate (supra) and the circumstances of McCreadie v HM Advocate (supra), both of which concerned substantial commercial organisations. The court accepts the broad submission that the sentence was excessive.  It will reduce it to one of 18 months, from a headline of 24 months.