Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 6

HCA/2015/003372/XC

Lord Menzies

Lady Smith

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST SENTENCE

by

JAMES MacIVER

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Mitchell;  Faculty Services Limited

Respondent:  Goddard;  Crown Agent

7 January 2016

[1]        The appellant James MacIver is a 55 year old man who appeared at the High Court at Edinburgh on 8 October 2015 having tendered a plea of guilty by section 76 letter to an indictment of contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 involving Diamorphine.  He was found with Diamorphine with a maximum potential street value of £14,220 together with associated drugs paraphernalia.

[2]        The trial judge sentenced him to imprisonment for a period of 6 years that being discounted from a starting point of 9 years to reflect the fact that a plea of guilty had been tendered at the earliest possible stage.  It is to be noted that the appellant has a bad record of previous convictions.  He has 23 previous convictions in total of which five are for contraventions of section 4(3)(b) of the Misuse of Drugs Act in relation to Class A drugs.  It follows from this that the minimum sentence which the court could impose, subject to exceptional circumstances, in terms of section 205B of the Criminal Procedure (Scotland) Act 1995 was 7 years’ imprisonment.

[3]        It was argued before us today that the minimum of 7 years’ imprisonment is itself a severe sentence and that the court in the circumstances of this case erred in imposing an additional 2 years as a starting point in the present case.  It was also urged on us that the appellant’s previous offending in relation to section 4(3)(b) offences was at a relatively low level, which is why those offences had been prosecuted in the sheriff court.  It was submitted that the value and quantity of the Class A drugs in this case was not at the highest level (it was at a relatively low level it was submitted) and finally our attention was drawn to the personal circumstances of the appellant as those are narrated in particular at page 2 of the sentencing judge’s report, and in particular it was pointed out to us that this is a man who had a prosocial attitude until about 1998 when he went through a breakdown of his marriage and he went into a “pretty catastrophic downward spiral”, as the sentencing judge puts it.

[4]        In all these circumstances it was submitted to us that the sentencing judge erred in selecting a starting point of 9 years and that the starting point should have been lower.

[5]        We do not agree with that submission.  It is, we consider, a mistake to take the view that the 7 year starting point is itself a severe sentence and that the High Court should be slow to impose a heavier sentence even if it considers that those circumstances merit a heavier sentence.  The sentencing judge has set out in full his sentencing remarks when he sentenced the appellant on the 16 July 2015 and we can find no error or fault in any of those remarks.

[6]        This was, as we have indicated, the fifth occasion on which the appellant appeared before the court for section 4(3)(b) offences involving Class A drugs and having regard to the value and quantity of the drugs, the paraphernalia found and all the other circumstances we are unable to say that this sentence was excessive.  Accordingly this appeal is refused.