David Martin v. Her Majesty’s Advocate [2019] HCJAC 86

Note of appeal against sentence:- The appellant was convicted of being concerned in the supply of diamorphine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 and being in possession of cocaine contrary to section 5(2) of the 1971 Act. The appellant has been convicted on three previous occasions of supplying class A drugs:- (1) 2004 sheriff and jury conviction and sentenced to 13 months detention; (2) 2008 sheriff and jury conviction and sentenced to 56 months imprisonment; and (3) 2015 summary conviction and sentenced to 12 months imprisonment. In light of the present conviction being on indictment section 205B of the Criminal Procedure (Scotland) Act 1995 applied which provides that where a person aged 21 or over is convicted on indictment in the High Court of a class A drug trafficking offence he shall be sentenced to a term of imprisonment of at least 7 years, unless the court is of the opinion that there are specific circumstances which relate to any of the offences or to the offender and that those specific circumstances would make such a sentence unjust. The sentencing judge considered that there were no such specific circumstances and sentenced the appellant to 7 years imprisonment in relation to the supply charge and admonished him on the other charge. The appellant appealed against his sentence it being contended that the sentencing judge gave insufficient weight to the circumstances of the offence and of the appellant and as a result the length of sentence imposed was unjust. In relation to the offence itself, it was submitted that the amount of drugs involved was relatively modest (12 grams) with a value of around £900. In relation to the appellant, it was submitted that the appellant had significant health difficulties including deep vein thrombosis, leg ulcers, impaired mobility due to previous ankle fractures, and that he is prescribed medication for pain relief and also anti-psychotic medication and anti-depressants. Here the court allowed the appeal. The court stated that it is not for it to go against the declared policy of Parliament, the intended purpose of section 205B being to deter repeat offending in involvement in the supply of class A drugs. As such the court must impose a sentence of at least 7 years unless there are specific circumstances relating to the accused or to the offence which make such a disposal unjust. The court noted that in AG’s Reference, R v Marland [2018] EWCA Crim 1770. whilst the court is not looking for exceptional circumstances, it should not be too willing to treat normal circumstances as “specific circumstances” for the purpose of the section and that the court must conclude that the specific circumstances relied upon are such as to make it unjust to pass the minimum sentence. In the present case the court did not consider that the various health difficulties suffered by the appellant and the treatment he undergoes for them were specific circumstances allowing a departure from the minimum sentence. However, the court did conclude that the low value of the drugs was a factor giving rise to an issue. The court noted that the quantity of drugs involved was such that ordinarily one might expect to see such an offence tried on summary complaint. The 7 year minimum period only arises from a conviction on indictment. As such the court considered that the low level of the offending, in particular the quantity of diamorphine involved, did amount to a “specific circumstance” relating to the offence and the court considered that the mandatory minimum sentence of 7 years would be unjust. The court considered that the minimum 7 year sentence could be departed from. Having regard to the particular circumstances of the case and the appellant’s health difficulties the court quashed the sentence of 7 years imprisonment and imposed a sentence of 5 years imprisonment.