Carer convicted of class A drugs offence wins appeal for non-custodial sentence

James Houten was sentenced to 23 months’ imprisonment after admitting that he was involved in the supply of class A drugs.

However, the High Court of Justiciary Appeal Court quashed the sentence and imposed a community payback order after accepting the appellant’s explanation that the offence was “out of character” and that he was a carer for his partner’s disabled son.

‘Safe house’

Lord Drummond Young and Lord Turnbull heard that he pled guilty to a charge that on 24 April 2018 he was concerned in the supply of a controlled drug, cocaine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.

A plea of guilty was tendered and accepted at a first diet and the appellant was sentenced to 23 months’ imprisonment, discounted from 30 months on account of the guilty plea.

But he appealed against the sentence imposed by the sheriff on the basis that the disposal decision was “excessive”.

The explanation given was that the appellant accepted that he was involved in the supplying of class A drugs, but that this occurred on only one occasion when he performed for a friend the task of providing a safe house and holding the drugs for that friend, and that “no direct financial gain” was made from holding those drugs.

Particular emphasis was placed on the appellant’s caring responsibilities for his partner’s son, who is aged 18 but suffers from a considerable range of disabilities.

The court was told that the appellant had been the “primary carer” for the boy over a number of years, and it was emphasized that he did not merely care for him but was the boy’s only male friend and therefore played “a very important part” in his life.

It was further submitted that the offence was out of character.

The only previous convictions the appellant had were old ones for road traffic offences, which were not remotely like the present charge.

‘Excessive sentence’

Allowing the appeal, the judges considered that this was an “exceptional” case.

Delivering the opinion of the court, Lord Drummond Young said: “We endorse the sheriff’s view that being concerned in the supplying of class A drugs is a serious matter and must always be taken very seriously.

“Nevertheless, we think that in this case the sheriff perhaps paid excessive attention to the importance of deterring other offenders and perhaps gave insufficient weight to the very singular circumstances in which the appellant found himself, principally as the carer for his partner’s son.

“We also note a number of other factors: the lack of any significant previous convictions; the generally good record of the appellant; and the fact that he has already served the months in custody, which is the equivalent of six months when the provisions for early release are taken into account.

“Taking all of these matters into account we have decided that this is a case that might exceptionally, and we would emphasize exceptionally, be dealt with by a community payback order.”

He added: “We would propose that such an order should be for the period of three years and should be subject to an unpaid work requirement of 250 hours of unpaid work to be completed over a period of 12 months.

“In this connection we have regard to the criminal justice social work report, which discusses a community payback order. It notes that the appellant is a low risk offender convicted of a serious offence.

“The report also discusses unpaid work and the appellant is assessed as suitable for an unpaid work requirement. We consider that there is merit in these recommendations.”