Stuart Gorrie V. Procurator Fiscal, Haddington
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Bracadale,Lord Kingarth |
| Neutral Citation | [2014] HCJAC 10 |
| Court | High Court of Justiciary |
| Year | 2014 |
| Date | 21 January 2014 |
| Published date | 06 February 2014 |
| Docket Number | XJ833/13 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Bracadale Lord Kingarth | [2014] HCJAC 10 XJ833/13 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by STUART GORRIE, Appellant; against PROCURATOR FISCAL, HADDINGTON Respondent: _______________ |
Alt: Erroch AD; the Crown Agent
21 January 2014
Facts and Sentence
[1] On 11 September 2013, at Haddington Sheriff Court, the appellant, who is aged 35, pleaded guilty, at a continued pleading diet, to a complaint which libelled a contravention of section 4(2)(a) of the Misuse of Drugs Act 1971 by way of cultivating a controlled drug, namely cannabis. On 5 June 2013, 18 cannabis plants had been found growing in a bedroom at his flat in Musselburgh. There were transformers, fans, extractors, a tent cover and scales, all described by the respondent as "not the most sophisticated system". Only 3 of the plants were mature. They had an estimated value of £450. The discovery had been made following a leak of water into the downstairs flat, which had prompted a forced entry by council employees assisted by the police.
[2] The appellant has a significant criminal record. He was convicted of a directly analogous offence in 2011 in respect of which a Community Service Order of 120 hours had been imposed. In addition, he had 5 previous convictions for possession of drugs, for which fines of up to £175 had been imposed. He had served custodial sentences for road traffic offences in 2004 (driving whilst disqualified and without insurance) and for an assault to severe injury in 1997. Although omitted from the schedule, the appellant disclosed the existence of a High Court conviction for another assault to severe injury in 1998, which attracted a four year sentence.
[3] Following upon the commission of the directly analogous offence, the appellant, who had been a council tenant for 12 years, had been made the subject of a short term tenancy to enable him to demonstrate that he would commit no further offences. Almost as soon as his permanent tenancy was reinstated, the appellant committed the present offence.
[4] A Criminal Justice Social Work Report disclosed that the appellant has a daughter from a previous relationship. She is now 17 and the appellant has recently re-established contact with her. A second relationship, which occurred briefly between prison sentences, produced a son. He was born on 17 November 1998 and is therefore now aged 15. He has lived with the appellant since he was an infant, with the exception of the periods when the appellant was in prison. A third relationship, which is of 5 years duration and with his present girlfriend, has produced a third child; another son, aged 2. It was said to be the intention of the appellant and his girlfriend to live together, but that does not seem to have happened. They retain separate local authority tenancies in the same street, but neither of the flats is said to be of sufficient size to accommodate the appellant, his girlfriend and the two boys. It has not escaped the attention of the court, however, that, when the cannabis was discovered, neither the appellant nor his teenage son were in the appellant's flat. Rather, they were staying overnight at the girlfriend's home.
[5] The appellant left school at 15 and started work in his father's plastering business. This came to an end when his father sold the business and moved to Spain. The appellant has not worked since 2010, when he was diagnosed with epilepsy. He also suffers from depression. When in custody in the late 1990s, he was introduced to heroin. He now attends the Gateway Substance Misuse Clinic and is prescribed an "opiate substitute", namely subutex. He maintained that he grew cannabis to avoid his old drug associates and to keep him from returning to heroin.
[6] Although he did not require to do so, the sheriff obtained the CJSWR, but, in relation to any impact on the appellant's teenaged son, it simply recorded that a custodial sentence would have implications for the boy and that the child welfare team had been alerted to the existence of the court diet. It did not detail what the implications might be. The sheriff was given no information on this. However, he assumed that, if no family member or other suitable adult were able to look after the child in the period whilst the appellant was incarcerated, a short term fostering arrangement would be put in place. No doubt that is so. The court was told that, after the appellant had previously been imprisoned, the child had lived with his (the child's) mother, but she had proved seriously inadequate as a carer and the appellant's mother had assumed custody of the child. The mother had not been working at that time, but now she was. The appellant had several sisters in the neighbourhood, but none was said to be able to look after the boy, even for a short time.
[7] The CJSWR recommended a Community Payback Order with unpaid work. It did note, however, that the appellant was aware that the offence could attract a custodial sentence, given his record. On 9 October 2013, the sheriff sentenced the appellant to 4 months' imprisonment, discounted from 6 months in recognition of the early guilty plea. The sheriff reasoned that "the custody threshold had been met". The offence had necessitated a "considerable degree of planning" and demonstrated "a cynical disregard for the criminal law". The sheriff recognised that the appellant was the carer of his son. In a supplementary report following the grant of leave to appeal at second sift (infra), he stated that he had taken into account that the child would be adversely affected by a sentence of imprisonment. He also observed that the offence had been committed in the family home, where the child was said to have been living. This was, in itself, a cause for concern and "at best, constituted behaviour which did not set a good example and, at worst, exposed the child to risk of harm". The sheriff reached the conclusion that a custodial sentence was appropriate taking into account the public interest as well as that of the child.
Ground of Appeal
[8] The Note of Appeal advanced the proposition that the sentence was excessive in that the sheriff had failed to give sufficient weight to: the small and unsophisticated nature of the cultivation; the positive terms of the CJSWR; and the implications for the appellant's son. There was still no specification of what these implications might be.
[9] Leave to appeal was refused at first sift. An opinion from a solicitor advocate supported the appeal without expanding upon the statement that the ground of appeal was arguable. At second sift, leave to appeal was granted partly on the basis that, although the sheriff had stated that he had taken the child's interests into account and balanced it with the public interest, he did not say what the consequence for the child might be or how the...
To continue reading
Request your trial
-
Procurator Fiscal, Alloa Against Ross Porch
...domestic abuse cases, adopting a blanket policy of maintaining opposition to their removal. [18] In the case of Gorrie v PF Haddington [2014] HCJAC 10, an argument had been advanced that in imprisoning the accused, the court had failed to give weight to the article 8 rights of the accused’s......
-
C A F V M L H (ap)
...are a “primary consideration” (UN Convention on the Rights of the Child 1989, article 3; M v S 2011 SLT 918; cf.Gorrie v PF, Haddington [2014] HCJAC 10), I have had regard to those interests as a primary but not the paramount consideration in punishing her for her contempt of court. In the ......
-
Darbazi v HM Advocate
...2013 JC 40; 2012 SLT 855; 2012 SCCR 428; 2012 SCL 705 Bhowmick v HM Advocate [2018] HCJAC 6; 2018 SLT 95; 2018 SCCR 35 Gorrie v MacLeod [2014] HCJAC 10; 2014 SCCR 187; 2014 SCL 293; 2014 GWD 7-151 Graham v HM Advocate [2017] HCJAC 71; 2017 SCCR 497; 2017 SCL 963; 2017 GWD 30-479 Kaufman v B......
-
Note (no.2) By Sheriff George Jamieson In The Cause J D E V S D W
...order a child impact statement from the local authority prior to punishment being imposed on the contemnor: Cf Gorrie v PF, Haddington [2014] HCJAC 10 at [21]; and see M v S 2011 SLT 918 at paragraph [37]I would be reluctant, despite their breadth, to read Articles 3.1 and 12.1 of the Conve......