Alasdair James Finlayson and Cameron Ross v. His Majesty’s Advocate [2023] HCJAC 13

Note of appeal against sentence:- At the High Court the first appellant pled guilty to two charges of being concerned in the supply of drugs over a seven month period in the north of Scotland in 2020 (cocaine and cannabis) contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to 9 years imprisonment on the cocaine charge (discounted from 10 years on account of the plea of guilty) and to a concurrent sentence of 32 months (discounted from 36 months) in relation to the cannabis charge. The first appellant appealed against the sentence imposed on the cocaine charge, it being contended that the sentence imposed was excessive (the appellant did not appeal in relation to the cannabis charge). The second appellant pled guilty to a charge of being concerned in the supply of cocaine between 10 and 12 June 2020 and was sentenced to imprisonment for 23 months (discounted from 30 months on account of the plea of guilty). On behalf of the first appellant it was submitted that his motivation was not purely financial in that he had developed an addiction problem to drugs and had become in debt to others higher up in the distribution chain and was liable to exploitation. It was submitted that the sentencing judge had given insufficient weight to that mitigatory background and, in particular, that the first appellant was not a high-level organiser. Reference was made to a case involving an accused who had pled guilty to an offence contrary to section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010, namely, being involved in serious and organised crime by organising and facilitating the supply of drugs in the Highlands where in that prosecution the accused was the true head of the organised crime group in which the first appellant played a less significant role and the headline sentence selected by a different judge for that person had been 8 years and 6 months’ imprisonment which sentence was out of line with the sentence imposed here. Here the court had regard to the English Sentencing Council Definitive Guideline and considered that, unlike the judge at first instance, the first appellant did not play a leading role in the supply chain.The court considered that the appropriate headline sentence would be one of 8 years and discounted that by 10% to 7 years and 3 months on account of the plea. In relation to the second appellant it was submitted that the circumstances of the offence allowed the court to follow an exceptional course and to impose a non-custodial sentence, having regard to the second appellant’s age, his vulnerability and his lack of maturity. In addition, it was submitted he had a good work record, had derived no financial gain from his involvement in the offending, had addressed his cocaine addiction and was assessed as presenting a minimum risk of reoffending and there was an appropriate alternative to a custodial sentence in the form of a Community Payback Order with additional requirements. Here the court refused the appeal in relation to the second appellant and stated that the sentencing judge had taken into account all of the relevant considerations and it could not be said that he erred in concluding that the only appropriate sentence was imprisonment.