High Court refuses appeal against imposition of prison sentence on drug dealer who failed to pay confiscation order

About this case:

• Citation:
  [2023] HCJAC 47
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Doherty

It was argued for appellant Lawrence Phee, who was already serving an 8-year sentence for the drug-related offences that led to the making of the order, that an additional 2-year sentence was excessive in the circumstances and a miscarriage of justice.

The appeal was heard by Lord Doherty and Lord Matthews. McConnachie KC appeared for the appellant and Cameron, advocate depute, for the Crown.

Lower end of the band

On 18 September 2020 the appellant pled guilty to three charges of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. He was later sentenced to 8 years 6 months’ imprisonment. Confiscation proceedings under the Proceeds of Crime Act 2002 followed, in which it was agreed in a Joint Minute that a confiscation order ought to be made in the sum of £75,557.41, with payment to be made within 6 months of the making of the order on 16 May 2022.

The time limit was later extended to 15 May 2023, but no payment was made by this date. On 21 August 2023 the sheriff sentenced the appellant to 2 years’ imprisonment in respect of the default in paying the confiscation order, to be served consecutively to the sentence of imprisonment the appellant was already serving.

For the appellant it was submitted that the sheriff ought to have modified the period of imprisonment because there was no prospect of the tainted gifts being recovered. The sum ordered to be repaid was towards the lower end of the £10,000 to £500,000 band under section 118 of the 2002 Act, which carried a maximum period of 5 years’ imprisonment, but the sentence reflected the middle of the band.

In advance of the appeal hearing the Crown raised a possible competency issue on the basis that the order for imprisonment may not be a “sentence”. However, further submissions on this point were not made after the court indicated it would deal with the merits of the appeal on the basis that the order was a sentence in the ordinary meaning of the term.

Mathematical approach

Delivering the opinion of the court, Lord Doherty observed: “When a court considers the section 92(6) proportionality issue at the time of making a confiscation order it should have in view the statutory aim of recovering the amount which the offender has obtained from crime. In general, the making of an order in the full amount is likely to be proportionate to that aim unless there are factors which have effected a reduction in the amount which the offender has obtained from the crime.”

He continued: “It was agreed that a confiscation order should be made in that sum. Therefore, it was common ground that at the time the order was made it would not be disproportionate to require the accused to pay the recoverable amount of £75,557.41. Otherwise it would not have been agreed that the confiscation order in that sum be made. That is the context of the present appeal.”

Assessing the proportionality of the sentence, Lord Doherty said: “[The sheriff] explained that he chose 2 years as that recognised that the amount owed was firmly in the lower half of the relevant band, but was also a significant continuing incentive to satisfy the confiscation order. He took account of the fact that the substituted table set alternatives very much in excess of the table for fines under section 219, which he considered reflected the will of Parliament that the alternatives in a confiscation proceeding may be significantly greater than those which would be attracted for non-payment of a fine.”

He concluded: “The sheriff was not obliged to follow the sort of mathematical approach which the appellant suggests was appropriate. He could approach matters more broadly. It was open to him to have regard to what the maximum sentence would have been had the confiscation order been a fine. We are not persuaded that he fell into any error. He was entitled to reach the view that 2 years was appropriate. The sentence was not disproportionate or excessive.”

The appeal was therefore refused.