Liam Stewart v. Her Majesty’s Advocate [2022] HCJAC 9

Description

Note of appeal against sentence:- On 1 October 2021, at a first diet at Livingston Sheriff Court, the appellant (aged 19) pled guilty on indictment to a charge being concerned in the supply of ecstasy to another or others and, in particular to MW (aged 15/16) over a 5 month period contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. On 5 November 2021 the sheriff sentenced the appellant to 45 months detention, discounted from 60 months on account of the plea of guilty. The appellant appealed against his sentence it being contended that it was excessive and that an appropriate alternative sentence to detention was available. It was submitted that at the time of the commission of the offence the appellant was aged 16/17. He had developed a drug dependency and was supplying drugs to his peer group to fund his own drug misuse. It was submitted that the quantity/value of the drugs involved (£250) was relatively low. It was further submitted that the sheriff’s categorisation of the appellant as “a ruthless drug dealer” and his assessment of the level and extent of his drug dealing were unfair and inaccurate. Furthermore, whilst Jessica Higgins, who was aged 15 at the time, died as a result of MDMA poisoning from drugs which MW purchased from the appellant, the appellant was not charged with supplying Miss Higgins, or with culpable or reckless conduct, or with causing her death, and it appeared the sentencing sheriff had been influenced by the tragedy and the sentence reflected it. In addition, the appellant had had a difficult childhood, he had made a number of positive improvements in his life as reflected in a positive Criminal Justice Social Work Report, in that he had given up drugs, had secured an apprenticeship and had expressed genuine remorse for his conduct. Here the court allowed the appeal stating that the sentence imposed was excessive. The court stated that, in relation to the submission that the sentencing sheriff treated the appellant as if he was guilty of more than the terms of the plea which was tendered and accepted, there were a number of similarities with the case of Liam Doyle v HMA, Unreported, 16 May 2017, HCA/2017/000143/XC and it appeared that the sheriff was unduly influenced by the tragic and fatal consequences of the consumption by Miss Higgins of ecstasy which the appellant had supplied to MW and had in effect sentenced the appellant for conduct which did not form part of the libel of the charge to which he had pled guilty. The court considered that the categorisation of the appellant as a ruthless drug dealer and his assessment of the level and extent of his drug dealing were inaccurate. The court also considered that the sentencing sheriff had given insufficient weight to a number of factors in the appellant’s personal circumstances. Here court recognised, however, having regard to the seriousness nature of the offence, that the decision as to whether to impose a non-custodial disposal over a period of detention was a difficult one. The court stated that, the fact that the appellant had spent 3 months on remand (equating to a 6 month short term sentence), reinforced the court’s view that a non-custodial sentence was an appropriate sentence in the case. The court stated that had it not been for the period on remand and the plea of guilty the starting point would have been a Community Payback Order with a requirement for unpaid work or other activity of 300 hours, however, on account of the plea of guilty that headline figure was discounted to 225 hours and, in light of the time spent in custody, that figure was reduced to 100 hours, which work requirement had to be completed within 12 months.