Custodial sentence was ‘excessive’ for teenage first-time drugs offender, appeal judges rule

The Criminal Appeal Court ruled that a custodial term was not the only appropriate disposal having regard to the age of the offender, and therefore quashed the sentence imposed and substituted a community payback order.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie, heard that the appellant Jordan Smart, who was 18 at the time of the offence, was sentenced to 27 months detention reduced from three years on account of his plea.

But the appellant, who had no previous convictions, appealed against sentence on the basis that the imposition of a custodial sentence was “excessive”.

The court was told that the appellant had co-operated with the police from the outset, was “remorseful” and understood that his actions had been wrong.

He was holding the drugs for a short period of time, namely one day, for an acquaintance to whom they were to be returned “without financial gain” on the part of the appellant and without any onward supply on his part.

He had also removed himself from a peer group which had been a bad influence on him, returned to reside with his grandparents and had a goal of attending college.

The criminal justice social work report assessed him as at a low risk of re-offending and expressed concerns that he would “struggle with custody”.

The court also heard that the appellant suffered from depression, readily accepted that he had made a mistake and that his actions were a consequence of “naivety” and “poor judgment”.

However, the sheriff’s conclusion was that there was “no compelling mitigation” and accordingly he selected the custodial sentence.

But the appeal judges observed that a “striking feature” of the sheriff’s report was that at no stage did he refer to the appellant’s youth.

The Lord Justice Clerk said: “Furthermore the effect of the appellant’s youth, the bearing it might have on his offending, or his decision making, or the opportunities available to him yet to make something of his life are not addressed by the sheriff at all in his report, and do not appear to have been a feature in his thinking in relation to the appropriate sentence to be passed on the appellant.

“Instead he refers to the ‘consistently expressed view’ of this court that those involved in such an offence can expect to receive a significant custodial sentence in all but exceptional circumstances.”

The judges observed that while such observations may be appropriate to the “generality” of the cases, “it is always necessary to consider the individual context in which the youth of an offender would be a very important consideration”.

“Even a very serious offence, which in an adult might require a custodial sentence, might not do so in relation to a young person,” Lady Dorrian added.

The court also required to consider the personal circumstances of an offender, including his home background, the extent to which he may not be solely responsible for his behavioural problems, and the opportunities that a non-custodial sentence may give for rehabilitation.

In a written statement of reasons, the Lord Justice Clerk said: “This case raises several of these considerations. The appellant had an unsettled childhood after his parents split up when he was a year old. He had an itinerant lifestyle throughout his childhood, struggled to make friends, suffered bullying and displayed behavioural problems.

“His grandparents appeared to have brought the only stability into his life and it is clearly a positive factor that he has returned to live with them in this stable arrangement, and that they are giving him their support.

“This contrasts with the somewhat rootless lifestyle, lacking in routine or motivation, that he was living in Fife. The appellant’s decision to move away from Fife, the absence of any offending since doing so and the support of his grandparents are all described in the criminal justice social work report as protective factors.

“The possibility that his offending was related to an unsatisfactory peer group, naivety and poor judgement are, as recognised in the report, real ones. Forthright recognition by the appellant that he requires to take steps himself to address his future, his actions in moving to Glasgow as a positive step in that respect and his anger at himself for becoming involved in this offence are all positive pointers for the future.”

The judges held that it was “quite simply wrong” to suggest in these circumstances that no method other than a custodial disposal was appropriate for the appellant.

Lady Dorrian added: “Accordingly, we have allowed the appeal and substituted a community payback order for a period of three years with a supervision requirement under which the appellant must follow the recommendations of his supervising officer in particular in relation to offence focussed work relating to his decision making; making better use of his time and developing links in the community in Glasgow, including with employability services; and taking advantage of mental health services. In addition we have imposed a requirement that the appellant carry out 300 hours of unpaid work in the community over a period of 12 months.”