Liston Craig Pacitti v. Her Majesty’s Advocate [2019] HCJAC 50

Appeal following a reference by the SCCRC:- On 17 December 2017, at Dundee Sheriff Court, the appellant pled guilty to a charge of culpable and reckless conduct which he knew would cause a danger to health by supplying various quantities of new psychoactive substances between 3 July 2013 and 7 December 2014 at shops in Arbroath and Montrose and injured one person and endangered the lives of ten others. The appellant’s co-accused pled guilty at a subsequent first diet to an indictment in similar terms in relation to a shop in Perth which resulted in injuries to seven adults and a child. On 24 April 2018 the appellant was sentenced to 4 years and 6 months imprisonment discounted from a starting point of 6 years to reflect the plea of guilty. The co-accused received the same sentence with the sheriff stating that no difference should be made between them. The sheriff indicted that the substances were similar to Class B drugs referred to the English Sentencing Council’s Definitive Guideline on Drug Offences and that whilst at the time of the commission of the offences the Psychoactive Substances Act 2016 was not in force it provided for a maximum penalty of 7 years imprisonment in the absence of any injury. The appellant appealed against his sentence. On 26 June 2019 the appellant’s appeal against sentence was refused. The court did not consider that the sheriff was in error in referring to the Definitive Guideline given the similar effects the substances had to controlled drugs. In addition, the court did not consider that any distinction ought to have been applied between the appellant and the co-accused in light of the particular circumstances of the case and the fact that they were in effect in business together. On 6 October 2018, the co-accused was successful in his appeal against the sentence imposed with his sentence being reduced to 3 years and 9 months from a lower starting point of 5 years, with that differently constituted appeal court stating that the sheriff had fallen into error by having regard to the maximum sentence of an Act of Parliament not in force at the time of the offence and that the sheriff had regard to the Definitive Guideline which related to substances controlled under the Misuse of Drugs Act 1971. In addition, that court had been able to distinguish between them both on the basis that the co-accused was only involved with one shop whereas the appellant was involved from two and certain differences in relation to their personal circumstances. In light of the conflict between the two decisions of the appeal court whereby one court identified no errors on the part of the sheriff and the other identified two errors by the sheriff, the SCCRC referred the case as it considered that a miscarriage of justice may have occurred. Here the court agreed with the terms of the reference by SCCRC that the sheriff had erred having regard to irrelevant considerations, namely, the Definitive Guideline and the maximum penalty under the 2016 not being relevant at the time of the offence. Whilst there were matters that allowed the sheriff to distinguish between the appellant and the co-accused, for example, the appellant’s previous offending, there were other matters which “tipped the scale back into balance”, for example, the co-accused pled guilty at a later point in proceedings. As such the court considered that issues of comparative justice applied and the appellant’s sentence should be the same as that of the co-accused. In the circumstances the sentence of 4 years and 6 months was quashed and substituted with a sentence of 3 years and 9 months reduced from a starting point of 5 years.