APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Smith	[2010] HCJAC 71 XC247/10 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST SENTENCE by JOHN DOUGLAS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Mitchell; Barony Law Practice

Respondent: McKenna A.D.

17 June 2010

In this appeal the appellant John Douglas appeals against sentences of imprisonment imposed by the sheriff at Banff in respect of several charges, the most significant of these was a charge brought under section 4(3)(b) of the Misuse of Drugs Act 1971 involving concern in the supply of Diamorphine between 3 January 2009 and 2 February 2009. The other two charges which were the subject of sentences were brought under section 27(1)(b) of the Criminal Procedure (Scotland) Act 1995 and involved breaches of bail conditions.

In respect of those two charges the sentences in each case were 3 months imprisonment ordered to be concurrent among themselves but consecutive to a sentence of 12 months imprisonment imposed on the charge under the Misuse of Drugs Act. All of these offences were committed before this court on 20 August 2009 dealt with an appeal against a custodial disposal on another charge under section 4(3)(b) of the 1971 Act. On 20 August 2009 this court imposed a period of 11/2 years probation and we have been informed that there is no question of any breach of that probation order. That order was imposed for the reasons explained in the opinion of this court of that date. Many of the considerations that motivated this court in taking that course may well be applicable to the offence for which the custodial sentence has now been imposed under section 4(3)(b). Thus the sentences imposed by the sheriff in effect prevent the operation of the probation order which was imposed by this court. It is not clear to us that the sheriff was fully aware of the chronology of the appellant's offending and that what he was dealing with were offences which occurred before this court made its determination. In any event be that as it may in the circumstances which are known to us we consider that the sheriff's disposal was excessive and inappropriate in all the circumstances. While no doubt any offence under section 4(3)(b) of the 1971 Act must be regarded seriously the circumstances in which the appellant's offending took place appear to provide to us powerful mitigation.

What we shall therefore do is to adjourn this appeal hearing until a suitable date after 20 February 2011 which we understand to be the date of the expiry of the probation order to which we have referred. When the appeal is again heard following upon that date this court will require to consider what course of action may be necessary at that time but provided that the probation order is satisfactorily performed and not breached it can be anticipated that a non-custodial and lenient disposal will be adopted. That is how we intend to deal with the matter.

KW