John Williamson v. Her Majesty’s Advocate [2016] HCJAC 115

Note of appeal against conviction and sentence:- On 8 February 2016, at Perth Sheriff Court, the appellant was convicted after trial on indictment of being concerned in the supply of diamorphine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Sentence was deferred until 16 March 2016 for the purposes of the court obtaining a Criminal Justice Social Work Report. On 16 March 2016 the appellant was sentenced to 30 months imprisonment. The appellant appealed against his conviction on the grounds that no reasonable jury, properly directed, could have returned a verdict of guilty. The appellant also appealed against his sentence. The circumstances were that within a locked cupboard in the appellant’s flat the police, in execution of a search warrant, recovered 881 grams of heroin with a street value of between £44,050 and £88,100 if divided into its most divisible form. The tub in which the heroin was recovered was wrapped in a pair of boxer shorts from which the appellant’s DNA was recovered and the appellant’s fingerprints were recovered from on top of a fridge freezer which was also located in the same locked cupboard. The appellant was described as vulnerable having previously been diagnosed with schizophrenia. There was no evidence of the appellant having received any benefit from any involvement in the offence. During the course of the cross-examination of police witnesses evidence was led of the appellant’s sons having criminal connections and suspicions of them being involved in drug dealing. One of the appellant’s sons, “John”, was being tried in Liverpool in relation to drugs offences. Further evidence was elicited during cross-examination that drug dealers would often use vulnerable individuals for the purpose of storing drugs. Here it was submitted on behalf of the appellant that, whilst it was conceded there was a sufficiency of evidence, the case was purely circumstantial and there had been other people more likely to be involved in the vicinity like his sons and it was possible that the appellant had known nothing of the drugs. Here the court refused the appeal against conviction and reiterated the test for such an appeal brought under section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, namely, an objective test where the court must be able to hold that no reasonable jury could have returned a guilty verdict. The court further stated that where there is a sufficiency of evidence then such an appeal can only succeed in the most exceptional of circumstances. In the present case the court considered that the test had not been met. The court pointed to a number of adminicles of evidence from which the jury could infer the appellant’s involvement in the offence:- (1) the drugs were discovered in the appellant’s locked cupboard for which he had the sole use; (2)  the drugs were wrapped in clothing which bore his DNA; (3) the appellant’s fingerprints were found on an item in the cupboard; (4) the drugs were wrapped in relatively distinctive cling-film and bags and similar cling-film and similar bags were recovered from the appellant’s kitchen. In relation to the appeal against sentence it was submitted the sentence was excessive and a custodial sentence was not appropriate. It was submitted on the appellant’s behalf that he was 73 years of age, had no previous analogous convictions and had a number of chronic health problems. It was further submitted that he had received no obvious benefit from the offence and had been in custody from 16 March 2016 to 22 July 2016. Here the court refused the appeal against sentence. The court considered that, whilst dealing in Class A drugs will normally attract a significant custodial sentence, that is not an inevitable conclusion, it is necessary to consider the particular circumstances of the case and the context in which an offence was committed. The court stated here, however, that the fact the appellant required medical treatment, which could be provided within a custodial setting, did not mean a custodial sentence could not be imposed. In light of the quantity and value of the drugs recovered in the present case the court did not consider that a sentence of 30 months was excessive and it was not the appellant’s position that he was preyed upon by his drug dealing sons as a vulnerable individual as it had been his position at trial that he had no knowledge of the presence of the drugs.