Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 73

HCA/2016/000315/XC

Lord Justice Clerk

Lord Brodie

STATEMENT OF REASONS

delivered by LADY DORRIAN, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

JORDAN THOMAS SMART

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  I Paterson, Sol Adv; Paterson Bell

Respondent:   MacFarlane, AD; Crown Agent

16 August 2016

            On 10 May 2016 the appellant pled guilty to an offence of being concerned in the supply of a quantity of heroin with a maximum street value of £1100.  The court minute records that the appellant was sentenced to 27 months detention, reduced from three years on account of his plea, although the sheriff’s report refers to a period of imprisonment, a point to which we shall return.  At the time of both the offence and the plea the appellant was 18 years of age, although he is now 19. 

            The sentence is appealed on the basis that the imposition of a custodial sentence was excessive.  The appellant had co-operated with the police from the outset, and had tendered a plea of guilty.  He held the drugs for another individual for a short period of time, namely one day.  The value of the drugs was £325 or £1100 if subdivided.  The appellant had no previous convictions, was remorseful and understood that his actions had been wrong.  He had removed himself from a peer group which had been a bad influence on him, had, at the time of sentencing, returned to reside with his grandparents and had a goal of attending college.  He was holding the drugs for an acquaintance to whom they were to be returned, without financial gain on the part of the appellant and without any onward supply on his part.  The Criminal Justice Social Work Report assessed him as at a low risk of re-offending and expressed concerns that he would “struggle with custody”.  The appellant suffered from depression, readily accepted that he had made a mistake and it was reasonable to consider that his actions were a consequence of naivety and poor judgment. 

            The sheriff’s report indicates that as a result of intelligence received the police obtained a search warrant for the address in Fife at which the appellant was living.  He admitted them to the property and immediately told them there were drugs in the house.  He pointed the drugs out to them and admitted that they were his.

            In mitigation, the solicitor for the appellant had relied on the terms of the Criminal Justice Social Work Report.  Paragraph 5A of that Report contained the following information:-

• The appellant had been approached by a “friend of a friend” with whom he occasionally played computer games and asked if he would look after a container for him.  … he had not asked what was inside the container and had not been curious.  When police had come to his flat he had taken him (sic) to where he stored the container and advised that it belonged to him. 
• He acknowledged that his actions had been wrong, that he should not have agreed to store the container but was adamant that he did not stand to gain financially. 
• He was “raging” at himself, realising that by becoming involved in the offence he had “messed up” his life.  He wished he had refused to take receipt of the container, describing himself as an “idiot” for doing so and advised that he had learned that he needed to avoid certain individuals in the community and that not everyone could be trusted.

The social worker observed that:-

“If Mr Smart’s account of the current offence is accurate then his behaviour appears largely the result of naivety and poor judgment.  I felt that when discussing these matters he remained anxious not to implicate others.  He recognised he had made a mistake, which could have repercussions for his future life prospects, and was keen to move on from this.”

            The appellant advised that he had given up the tenancy of the property where the offence occurred and had returned to live with his paternal grandparents in Glasgow.  He had lived with them in the past, thanks to an unsettled childhood, and described this as a stable arrangement.  In recent years he had suffered from depression for which he was prescribed medication and was receiving counselling from local youth health services.  He had smoked cannabis in the past but had stopped doing so as it was negatively affecting his mood.  He reported no other controlled substance abuse and only occasional alcohol consumption.

            Noting that this was the appellant’s first offence, that he had not involved himself in offending since moving from Fife and had a stable address with a supportive family (his grandmother accompanied him to the interview), the writer considered that he would be suitable for a non-custodial disposal, notwithstanding the seriousness of the offence.  The writer noted that the appellant “spoke in a manner which suggested he knew what he had to do to avoid reoffending and by moving to Glasgow he has taken steps to limit the possibility of doing so”.  The report suggested that a supervision requirement would be appropriate however, to enable offence focussed work to be done with the appellant particularly relating to decision making;  to assist him to make better use of his time and develop links in the community in Glasgow, including with employability services;  and to encourage him to link with mental health services.  A placement for unpaid work would also be appropriate.

            The sheriff advises us in his report that the solicitor referred to paragraph 5(a) of the report indicating that although the appellant had said he did not know what was inside a container which he had been asked to look after, the true position was that he did indeed know that the package contained drugs.  She advised that the appellant has extracted himself from his previous peer group and submitted that he had “clearly been influenced by others”. 

            The sheriff took the view that the recommendation in the background report was unrealistic, observing:-

“The social worker appeared to be unaware of your Lordship’s consistently expressed view that people who get involved in the supplying of Class A drugs can expect to receive significant custodial sentences in all but the most exceptional circumstances.”

            At the sheriff’s prompting, the agent conceded that there were no such circumstances.  The sheriff notes that:-

“She made no attempt to elaborate on or explain the suggestion that the appellant had been influenced by others.  I therefore sentenced the appellant on the basis that he had been involved in the supplying of over £1,000 worth of Class A drugs in circumstances which appeared to offer little or nothing by way of substantive mitigation.”

            Addressing points made in the Notes of Appeal, the sheriff said that it was never stated in mitigation that the plea was tendered on the basis that the appellant was going to return the drugs to an acquaintance, noting that that position was similar to what was set out in paragraph 5(a) of the background report “which was expressly disavowed in mitigation”.

            In relation to paragraph 1(i) of the Note of Appeal which referred to section 204 of the Criminal Procedure (Scotland) Act 1995 the sheriff notes that he was aware that the appellant was a first offender and accordingly subject to the protection of “section 20” – this is clearly a misprint and the sheriff appears to have meant to refer to section 204 as raised in the Note of Appeal.  Neither his report nor the grounds of appeal refer to section 207.           

            The sheriff went on to state:-

“I have never understood the appeal court’s position to be that first offenders should not be imprisoned for getting themselves involved in the supply of Class A drugs.  There are some crimes which are serious enough to attract a custodial sentence even if the offender has not offended before.”

Analysis

            The terms of the Criminal Justice Social Work Report made it clear that the appellant’s position was that he had been holding the drugs for another to whom they were to have been returned that evening.  Although the solicitor in mitigation disavowed that part of section 5(a) of the Report which referred to a lack of knowledge of the contents of the package, it does not appear to be correct to say that the remainder of that section of the report was “disavowed in mitigation”.  Indeed the sheriff himself explains that the solicitor referred to a package which the appellant “had been asked to look after”.  The sheriff also indicates that nothing was said in mitigation about the appellant being manipulated, nor was there any submission that he had made no financial gain from his involvement in the offence.  One may split hairs by asking whether being manipulated is different from being “influenced by others” but there is no doubt that the latter formed part of the plea in mitigation;  and that the report indicated the approach from a “friend of a friend”, the appellant’s recognition that he needed to avoid certain individuals in the community and his decision to distance himself from his peers.  The sheriff’s overall conclusion in this case was that there was “no compelling mitigation “and accordingly he selected the custodial sentence referred to above.

            A striking feature of the sheriff’s report is that at no stage of the report does he refer to the appellant’s youth.  He does not refer to his age at all.  Under reference to the grounds of appeal he appears to have considered that as a first offender the appellant was entitled to the protection of section 204 of the Criminal Procedure (Scotland) Act 1995.  However that section deals with first offenders who are not legally represented (section 204(1)) or those who are over the age of 21 (section 204(2)).  The protection given to the appellant under section 207 is not given as a first offender merely, or as someone who has never before served a custodial sentence, it is also given because of his youth.  One might be forgiven for concluding that the sheriff had forgotten that he was dealing with such a young person since he twice refers to “imprisonment” rather than detention.  Furthermore the effect of the appellant’s youth, the bearing it might have on his offending, or his decision making, or the opportunities available to him yet to make something of his life are not addressed by the sheriff at all in his report, and do not appear to have been a feature in his thinking in relation to the appropriate sentence to be passed on the appellant.  Instead he refers to the “consistently expressed view” of this court that those involved in such an offence can expect to receive a significant custodial sentence in all but exceptional circumstances.  The sheriff does not explain to which cases he was referring, but no doubt he had in mind cases such as Ali v HMA (2010) HCJAC 110 where, in relation to a 39 year old offender, such an observation was made.  However such observations may be appropriate to the generality of the cases, it is always necessary to consider the individual context in which the youth of an offender would be a very important consideration.  Even a very serious offence, which in an adult might require a custodial sentence, might not do so in relation to a young person (see for example HMA v Smith 2014 SCCR 39).  Similar considerations arose in the case of Kane v HMA 2003 SCCR 749 where the sheriff had expressed views similar to those expressed by the current sheriff, albeit in a different context namely that:-

“Your Lordship’s court has repeatedly made it clear that there is only one possible sentence for robbery at knifepoint and that is a lengthy custodial one.”

However, as Lord Justice Clerk Gill noted (paragraph 11):-

“The sheriff thought that considerations of retribution and deterrence were decisive.  These are material considerations;  but there is more to sentencing than sending messages to society, particularly in the case of a young offender.  The court has to consider the personal circumstances of such an offender;  his home background, the extent to which he may not be solely responsible for his behavioural problems; and the opportunities that a non-custodial sentence may give for rehabilitation before he becomes trapped in the cycle of crime.”

            This case raises several of these considerations.  The appellant had an unsettled childhood after his parents split up when he was a year old.  He had an itinerant lifestyle throughout his childhood, struggled to make friends, suffered bullying and displayed behavioural problems.  His grandparents appeared to have brought the only stability into his life and it is clearly a positive factor that he has returned to live with them in this stable arrangement, and that they are giving him their support.  This contrasts with the somewhat rootless lifestyle, lacking in routine or motivation, that he was living in Fife.  The appellant’s decision to move away from Fife, the absence of any offending since doing so and the support of his grandparents are all described in the Criminal Justice Social Work Report as protective factors.  The possibility that his offending was related to an unsatisfactory peer group, naivety and poor judgement are, as recognised in the report, real ones.  Forthright recognition by the appellant that he requires to take steps himself to address his future, his actions in moving to Glasgow as a positive step in that respect and his anger at himself for becoming involved in this offence are all positive pointers for the future.  To suggest in these circumstances that no method other than a custodial disposal was appropriate for the appellant is in our view quite simply wrong.  Accordingly, we have allowed the appeal and substituted a community payback order for a period of three years with a supervision requirement under which the appellant must follow the recommendations of his supervising officer in particular in relation to offence focussed work relating to his decision making;  making better use of his time and developing links in the community in Glasgow, including with employability services;  and taking advantage of mental health services.  In addition we have imposed a requirement that the appellant carry out 300 hours of unpaid work in the community over a period of 12 months.