Gym owner jailed for selling dangerous weight loss supplement has sentence reduced on High Court appeal

About this case:

• Citation:
  [2023] HCJAC 38
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Boyd of Duncansby

It was argued by Jamie George, who sold the substance to persons known to him through his business running a gym and to others via the internet, that the sheriff had erred by equating his behaviour to the supply of controlled substances. The sentencing sheriff selected a headline sentence of 4 years’ imprisonment, reduced by the appellant’s guilty plea at a continued first diet.

The appeal was heard by Lord Doherty and Lord Boyd of Duncansby. Duguid KC appeared for the appellant and Bergin, advocate depute ad hoc, for the Crown.

Knew the effects

It was narrated in the charge that for a period between 2017 and 2021, the appellant culpably and recklessly supplied the public with a dangerous substance, namely 2,4-Dinetrophenol. DNP, a synthetic benzene-related chemical used in the manufacturing of dyes, wood preservatives, photographic developers, explosives and insecticides, could cause energy to be released as heat rather than stored, leading to an increase in popularity as an unlicensed weight loss supplement despite highly toxic side effects that are difficult to medically treat and can lead to death.

As a result of intelligence received officers from Food Standards Scotland and the local authority attended at the appellant’s home address on 18 July 2018, armed with a warrant. A number of items were seized, including a delivery slips notebook with a list of 11 names and a sealed foil packet of DNP with a label warning it was not for human consumption. Subsequent investigation traced a number of people who had bought DNP from the appellant, and a Proceeds of Crime statement served in 2021 showed a benefit of over £620,000.

At the sentencing diet the sheriff noted it was clear that the appellant knew of the effects of DNP and had continued supply despite an arrest in 2018. While the substance was not illegal, he considered he could be informed by sentencing decisions relating to the supply of illegal drugs in Scotland and by English guidance on the supply of psychoactive substances. He also considered the appellant did not show any genuine remorse and that there were few mitigating circumstances aside from his limited record. He had also known that a friend who used the substance had been hospitalised as a result.

It was submitted for the appellant that the sheriff’s equation of his conduct with the supply of illegal drugs was unfounded. The market for DNP was confined to persons whose interest was bodybuilding and the death rate substantially lower than that arising from the misuse of controlled substances. The suggestion that this was a large scale commercial operation was wrong, and the sentence imposed would seriously endanger the continued employment of 13 of his employees.

Otherwise legitimate business

Lord Boyd, delivering the opinion of the court, began: “In the absence of authority we consider that the guidelines from the Sentencing Council of England and Wales on the supply of psychoactive substances provide a useful analogy, subject to the caveat that they are to be used as a check rather than to be rigidly adhered to.”

Assessing the appellant’s conduct and profits from the operation, he said: “Using the guideline the appellant falls into the ‘leading role’ category. He was the principal person involved in the operation. He directed and organised the buying, processing and selling DNP for a period of over 4 years. It was on a commercial scale. The appellant would also appear to fall within category 1 - large supply indicative of commercial-scale operation. This would give a starting point of 4 years’ custody with a range of 3 - 6 years.”

He continued: “An issue of dispute is the scale of the commercial operation. We can understand the sheriff’s scepticism that the financial benefit was only £2000 to £3000 per annum given the quantities involved. On the other hand, we doubt whether the financial returns would as large as the sheriff appears to have assumed.”

Considering mitigating factors, Lord Boyd added: “We consider that an appropriate starting point in this case is 3 years’ imprisonment. Mitigating factors include the appellant’s lack of previous convictions and the fact that he provides employment in his otherwise legitimate business venture. Set against that is his continued supply of DNP in the face of the Remedial Action Notice and his arrest in 2018, and in the knowledge that DNP had caused the friend whom he involved to have a serious adverse reaction requiring hospital treatment.”

The court therefore quashed the original sentence and imposed a new headline sentence of 3 years’ imprisonment, discounted to 28 months by the guilty plea.