Jordan Thomas Smart v. Her Majesty’s Advocate [2016] HCJAC 73

Note of appeal against sentence:- On 10 May 2016 the appellant, who was aged 18, pled guilty on indictment at the Sheriff Court to being concerned in the supply of heroin contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant was sentenced to 27 months detention discounted form 36 months on account of the early plea. The appellant appealed against the sentence imposed on the grounds that it was excessive. The circumstances of the offence were that on a single day a quantity of heroin was recovered from the appellant. The value of the drugs was £325 or £1100 if subdivided into its most divisible form and the basis of the plea was that he had held the drugs for another individual for one day only and there had been no financial gain on the part of the appellant and without any onward supply of the drugs by him. Here it was submitted on behalf of the appellant that he had no previous convictions, was remorseful for his actions and had removed himself from those who had been a bad influence on him. The court allowed the appeal. The court noted that the sheriff in his note to the court made repeated references to ‘imprisonment’ rather than ‘detention’ and there appears to have been little or no regard by the sentencing sheriff to the age of the appellant in selecting the sentence he had. The sheriff referred to the protection the appellant had under section 204 of the Criminal Procedure (Scotland) Act 1995 which deals with first offenders who are not legally represented or those who are over the age of 21, however, the protection given to the appellant by virtue of his youth was given to the appellant under section 207 of the 1995 Act. The court noted that the sheriff in selecting the sentence he did referred to a consistently expressed view by the High Court that such offences will attract a significant custodial sentence in all but exceptional circumstances, for example, in Ali v HMA (2010) HCJAC 110 where such an observation was made in relation to a 39 year old, however, the court makes clear here that the youth of an offender is a very important consideration and one which had not been taken into account in the present case. Reference was made by the court to Kane v HMA 2003 SCCR 749 in which a sheriff stated that a lengthy custodial sentence was the only possible sentence in relation to a charge of robbery at knifepoint, however, at appeal the court stated that whilst retribution and deterrence are important considerations in sentencing for such serious offences, in relation to young offenders it is necessary for the court to consider the personal circumstances of the offender including his home background which might point to the young offender not being solely responsible for any behavioural problems and the imposition of a non-custodial sentence may afford the young offender an opportunity for rehabilitation. Here the court referred to a number of issues in relation to the appellant’s personal circumstances including him having an unsettled childhood due to issues at home together with him being the subject of bullying. The court stated that for the sheriff to suggest that the only appropriate sentence was a custodial sentence was incorrect. Having regard to the personal circumstances of the appellant and the efforts he had made since the commission of the offence to improve his personal situation by moving away from the negative influences in his earlier life in Fife to living with his grandparents the court substituted a Community Payback Order for a period of three years with a supervision requirement that he must follow the recommendations of his supervising officer and, in addition, the court imposed a requirement that the appellant carry out 300 hours of unpaid work in the community over a period of 12 months.