Appeal Against Sentence By Jordan Thomas Smart Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Brodie,Lord Justice Clerk |
| Neutral Citation | [2016] HCJAC 73 |
| Year | 2016 |
| Docket Number | HCA/2016 |
| Date | 16 August 2016 |
| Court | High Court of Justiciary |
| Published date | 29 August 2016 |
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...
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