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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Watt v Her Majesty's Advocate [2002] ScotHC 306 (03 October 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/306.html Cite as: [2002] ScotHC 306

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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lord Hamilton	Appeal No: C616/01 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST SENTENCE by JOHN WATT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: P. Wheatley, Solicitor-Advocate; Wheatley & Co.

Respondent: N. Davidson, Q.C., A.D.; Crown Agent

3 October 2002

1. On 4 June 2001 the appellant was found guilty in the High Court of a charge of being concerned in the supplying of diamorphine to David Strachan on 25 June 2000 at an address in Fraserburgh, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. On 25 July 2001 he was sentenced to twelve months detention in a Young Offenders' Institution.
2. The circumstances of the offence, as described in the report by the trial judge, were as follows. David Strachan, who had been formerly addicted to heroin, met the appellant. He had been drinking. He asked the appellant to acquire heroin for him. The appellant drove to a supplier's home and bought two bags of heroin, each worth £10, with money which Mr Strachan had given to him. The appellant and Mr Strachan then smoked one-half of the heroin at the appellant's house. Thereafter Mr Strachan went to his own house where he injected the remaining half of the quantity of heroin which had been purchased by the appellant.
3. Thus far the circumstances in which the heroin was used were unremarkable. However, in this case, Mr Strachan blacked out. When he woke up the following day he was suffering from severe neurological pains in his legs. He required to be taken into hospital where he was diagnosed as suffering from a condition known as rhabdomyolysis, which involved muscle cells being destroyed and releasing all their internal content into their surrounding sites. This condition was life-threatening and police took a dying deposition from him. Surgery was carried out to relieve pressure in his lower limbs. He also required substantial skin-grafting. Following surgery, he was found to have sustained very extensive muscle damage: most of his leg muscles had died. His legs had to be amputated to save him from gangrene spreading from his dead muscles. He remained in hospital until 23 July 2000. He was fitted with artificial limbs but still required treatment.
4. At the request of the sentencing judge, a medical report was provided by Professor Anthony Busuttil. His conclusions were as follows:

"If heroin was the only drug injected in this case by this man, and if no other drugs or considerable amounts of alcohol were present in his system (that could have induced a coma-like state), and if no other potential causes for his symptoms (such as hypothermia or multiple trauma) were present, then it is an inescapable fact that the deep coma-like sleep induced by this injection of heroin has led to a deep sleep during which there was a compression of the muscles and a compartment syndrome developed. In such a context there would therefore be a direct causal relationship between the use of the heroin on this occasion and the compartment syndrome, and the effects resulting thereafter from it."

The sentencing judge noted that it had never been suggested on behalf of the appellant that the coma had been induced by anything other than the injection of the heroin. Mr Wheatley, who appeared before us on behalf of the appellant, pointed to the fact that Strachan had been drinking and submitted that this should not be ignored. However, he did not appear to dispute the significance of the injection of the heroin in its effect on David Strachan.

5. In his report the sentencing judge states:

"Standing the Crown narrative and the terms of Professor Busuttil's report, I took the view that, notwithstanding the small amount of heroin involved, and the appellant's very limited previous criminal record [one contravention of section 5(2) of the 1971 Act], I had to take a serious view of this offence. I sentenced the appellant to one year's detention. In doing so, I told him that this case simply illustrated the very great dangers which arose in getting involved in the supply of drugs, such as heroin, and why the legislature took such a serious view of such offences. It appeared to me that I would be failing in my public duty if I did not impose a custodial sentence to mark the fact that the offence did involve the supply of a Class A drug and also the devastating consequences of the offence in this case. The duration of the sentence took into account the small amount of heroin involved and the appellant's limited previous criminal record."

6. The sentencing judge states that given its unusual circumstances he found this to be an anxious case. On the one hand the accused had only one minor previous conviction, though that also involved a drug offence, and he had a good work record. He had also apparently given up his own heroin habit and that had at least, in part, been brought about by his shock at the consequences of what he had done. The sentencing judge goes on to say:

"On the other hand, I took the view that I simply could not, in choosing an appropriate sentence, close my eyes to the devastating consequences that this offence had had for Mr Strachan and that the only appropriate way in which the court could make the seriousness of the matter clear was by imposing a custodial sentence. I considered that a custodial sentence was also required to act as a warning both to the appellant himself and to others tempted to engage in such conduct, that it was, in part, at least, because of the very serious consequences which the supply of such drugs to others might involve, that they should expect to face custodial sentences if they engaged in such conduct."

7. Mr Wheatley emphasised the importance of the actions of Mr Strachan. The appellant had only been aware of his smoking the heroin. Mr Strachan had not injected heroin for some time, and on this occasion had apparently adopted an unusual position when injecting himself, crouching with his whole weight on his legs. His submission was that the sentencing judge had fallen into error in having regard to the unusual consequences of the appellant's offence, or at any rate in paying as much attention to them as he had done.
8. In our view the sentencing judge was well entitled to draw public attention to the severe injury suffered by David Strachan as demonstrative of the dangers associated with the misuse of heroin. Further, in sentencing the appellant it was right for him to have regard to the serious consequences of his offence, subject, however, to recognising the unusual circumstances in which they had come about. However, it has to be borne in mind that the charge to which the appellant pled guilty was not a charge of being criminally responsible for injury to David Strachan. It was a charge of being concerned in the supplying of heroin to him. Thus, while cognisance should be taken of the danger which this involved for David Strachan, the sentence to be imposed on the appellant should not be out of proportion to the seriousness of the charge as a charge of being concerned in the supplying of heroin.
9. In this appeal there is a further consideration. At the time when he was sentenced the appellant was employed as a fisherman. The social enquiry report indicated that by reason of the nature of his work community service was not a viable option. Mr Wheatley informed us that owing to the decommissioning of his boat the appellant had lost his employment as a fisherman. Instead he was engaged in regular and continuous part time work.
10. In the light of these considerations we consider that the course of action taken by the sentencing judge was more severe than was justified by the nature of the charge and the circumstances with which it was concerned. Having regard to that and to the change in the appellant's circumstances, we consider that the correct course would be for us to quash the sentence of detention and to substitute a probation order with the condition that the appellant should perform 150 hours unpaid work in the community. Before making a determination to this effect we require to satisfy ourselves that the appellant is willing to undertake the responsibility for complying with such an order.