Anthony Stewart v. Her Majesty’s Advocate [2017] HCJAC 86

Note of appeal against sentence:- On 3 July 2017, at a continued first diet at Glasgow Sheriff Court, the appellant pled guilty on indictment to charge 2 (having with him without reasonable excuse or lawful authority a bladed or sharply pointed weapon [a kitchen knife] contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995), charge 3 (possession of amphetamine contrary to section 5(2) of the Misuse of Drugs Act 1971), charge 4 (possession of cannabis contrary to section 5(2) of the Misuse of Drugs Act 1971) and charge 5 (possession of cannabis resin contrary to section 5(2) of the Misuse of Drugs Act 1971) and not guilty to charge 1. The Crown accepted his pleas in relation to charges 2, 3, 4 and 5, however, rejected his plea of not guilty in relation to charge 1 and he proceeded to trial in respect of that charge. At the conclusion of the trial the appellant was acquitted of charge 1. The circumstances were that the police recovered the items relating to the charges in a motor vehicle being driven by the appellant. The knife in charge 2 was found in the rear passenger footwell. After obtaining a Criminal Justice Social Work Report, the sheriff sentenced the appellant to 12 months imprisonment discounted from 15 months on account of the plea in relation to charge 2, with 2 months attributed to the bail aggravation, and 2 months imprisonment in relation to each of charges 3, 4 and 5 all to be served concurrently with each another. The appellant appealed against his sentence on the grounds that the imposition of a custodial sentence was excessive or, in the event that the imposition of a custodial sentence was not excessive, then a shorter sentence of imprisonment would have been sufficient. It was submitted on behalf of the appellant that the knife was work equipment that he had dropped and had then placed out of sight in the car and he had then forgotten about it. It was submitted that the appellant did not have a propensity for carrying knives and charge 2 did not merit a custodial sentence. It was further submitted that the amount of drugs recovered was small and sentences had only been imposed in relation to those due to the custodial sentence having been imposed in relation to charge 2. In addition, the Court was advised that the appellant was a single parent who had custody of his 16 year old daughter who was sitting her higher exams during the period of imprisonment. Further, the author of the CJSWR considered that the appellant was a suitable candidate for a community disposal whether by a Restriction of Liberty Order or Community Payback Order with unpaid work. It was contended that the sheriff erred in rejecting the appellant’s explanation without giving notice of that and affording the appellant the opportunity of advancing his position of having dropped the knife through a proof in mitigation. It was submitted that the serious view the sheriff had taken of charge 2 depended on whether the explanation offered by the appellant was rejected. It was further submitted that the drugs charges by themselves would not justify imprisonment and custody is not inevitable in all cases where there has been possession of a knife in a public place. It was advanced that the appellant’s daughter’s circumstances and the availability of alternatives to custody resulted in the sentence of imprisonment being excessive. On behalf of the Crown it was accepted that in relation to the position tendered by the appellant relating to the presence of the knife it could not be said that the position was “so manifestly absurd that it can be disregarded” referring to McCartney v HMA 1998 SLT 160.  As such the Crown conceded that the circumstances of charge 2 allowed it to be viewed as being in the lowest range of culpability. Here the court allowed the appeal. The court considered that the sheriff had fallen into error in rejecting the mitigation advanced on behalf of the appellant in relation to charge 2. If the position advanced by an accused is not challenged by the Crown and, providing the position is not manifestly absurd, then in the absence of a proof in mitigation being offered the court requires to proceed on the basis that the position advanced is true. As such, rather than remitting the case back to the sheriff, the court dealt with the issue of sentence on the basis that what was advanced by the appellant was true. The court also had regard to the fact that a custodial sentence would have a negative impact upon the appellant’s daughter who was due to sit important exams. The court considered that the offence relating to the knife fell in the lower end of the range of culpability seen in such cases, as did the contraventions of the Misuse of Drugs Act 1971, and quashed the sentence of imprisonment and substituted a Community Payback Order with a requirement of unpaid work for 100 hours.