APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Menzies	[2012] HCJAC 84 XC85/12 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by GAVIN BROWN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

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.

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