APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Smith	[2010] HCJAC 73 XC71/10 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST SENTENCE by JULIE FRASER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: Brown; More & Co, Edinburgh

Respondent: McKenna A.D.

17 June 2010

[1] In this appeal the appellant Julie Fraser appeals against a sentence of 4 years imprisonment, imposed on 27 January 2010, in respect of her conviction, on a plea of guilty, of an offence under section 4(3)(b) of the Misuse of Drugs Act 1971. The offence itself was committed on a single day, 23 March 2009 at an address in Edinburgh. The drug involved was the Class A drug Diamorphine.

[2] The circumstances of the offence are, in part, set forth in the report by the sentencing sheriff to this court. It appears that on 23 March 2009, for reasons that are quite extraneous to this case, police officers attended at the address where the appellant was and found her and another person there. The police officers suspected that there might be controlled drugs at the premises and, in due course, a search was conducted. A quantity of heroin which the sheriff describes as "very large", in particular 196 grams, was found. He records that it had a minimum value of £4,115 but might be sold on the street for a very substantially larger sum than that. He records that the Crown accepted that, some years before, the appellant had sold her house, which gave her substantial free proceeds, the precise amount of which is not clear from the sheriff's report. She bought a large amount of heroin because she was then addicted to that substance. Her purpose in doing so was not to supply other persons on a large scale but simply to furnish herself with a supply of heroin without the necessity of frequent resort to dealers in the substance. However, her possession of the heroin and the remaining free proceeds of her house attracted persons to her home, who themselves were addicted to heroin. In certain cases, she gave heroin to them, but we were informed that that was done in small quantities and the supply to others was not the reason why she had in her possession the amount referred to.

[3] The sheriff, it respectfully appears to us, seems to have misunderstood the factual background to this case because, in the concluding part of his report, he states that the appellant was concerned in supplying a substantial quantity of heroin. He doesn't mention the physical amount of it but refers to the figure of £4,000 which it appears to us may represent the whole amount that was earlier referred to in his report which he valued at a minimum of £4,115. What the sheriff does not appear to have considered, so far as appears from his report in the case, is that any supply by the appellant was on a very small scale and did not involve the whole amount of the heroin which was in fact in her possession. It is noteworthy that the charge to which the appellant pled guilty related to only one day which would appear to us to be inconsistent with the basis upon which the sheriff proceeded to sentence.

[4] In all the circumstances we regard his decision as flawed, since it seems to proceed upon a misunderstanding of the facts. Upon that basis it is a matter for us to decide now what should be the disposal in this case. We have before us a social enquiry report which makes a number of representations. We also have a report from an organisation known as Transition or Access to Industry which is involved in helping individuals to give a positive structure to their lives and to move onto work or further education. The appellant has been participating in this programme since her release on bail towards the end of April 2010 and she is currently attending the programme five days a week. We were informed that in fact over recent months the appellant has been drug free and does not even rely upon methadone. She has also had contact with an organisation known as MELD which assists those who have been involved in drug abuse to avoid relapse and the report from that organisation, to our mind, shows that she has demonstrated a determination to change her lifestyle. Of course an offence under section 4(3)(b) of the Misuse of Drugs Act 1971 would normally attract a custodial sentence. However, we have taken take into account the fact that the appellant is a first offender and the other circumstances to which we have referred and we have concluded that this is an exceptional case where, in the interests of justice, a custodial sentence is not necessary.

[5] What we propose to do, and it is subject to the agreement of the appellant herself, is to quash the sentence the sheriff imposed and make a probation order for a period of 2 years. It would be a condition of that order that the appellant should perform 240 hours of unpaid work in the community to emphasise the disapproval which the court has of the offence concerned and we would also make it a condition that she engages in drug treatment or counselling as directed by her supervising officer. Provided that she agrees to that disposal, as she must for it to be effective, that is the way in which we would determine this appeal.

KW