‘Legal highs’ dealer wins appeal against sentence after SCCRC referral

Liston Pacitti and his co-accused Paul Brocklehurst both pled guilty to “culpable and reckless conduct” by supplying quantities of new psychoactive substances, but on appeal Brocklehurst’s sentence was reduced from four years and six months to three years and nine months’ imprisonment.

After Pacitti’s initial appeal against sentence was refused, the Scottish Criminal Cases Review Commission (SCCRC) referred the case to the High Court of Justiciary on the basis that a “miscarriage of justice” had occurred.

Allowing the second appeal, the judges ruled that “comparative justice” required that the appellant’s sentence should also be reduced to three years and nine months.

‘Legal highs’

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Brodie, heard that the appellant pled guilty at Dundee Sheriff Court in December 2017 to a charge of culpable and reckless conduct at shops in Arbroath and Montrose by distributing psychoactive substances which he knew would cause danger to health and, in consequence, he injured one person and endangered the lives of 10 others.

At a subsequent first diet in February 2018 the appellant’s co-accused pled guilty to an indictment in similar terms, involving a shop in Perth and supplies to 10 adults and two children, with injuries to seven of the adults and one of the children.

The sheriff sentenced both accused to four years and six months’ imprisonments, reduced from a starting point of six years.

In sentencing the accused the sheriff said there was “nothing to choose between them” despite the different circumstances, as they had basically been conducting the same business in conjunction with each other, but from different shops.

The appellant was aged 28 and had a criminal record which included a conviction for assault to severe injury, a further assault to injury, various road traffic conventions and a charge of vandalism, while the co-accused was 61 years of age and had no criminal record.

In selecting the appropriate custodial sentence the sheriff expressed the view that the legal highs were akin to class B drugs.

He had regard to the English Sentencing Council’s Definitive Guideline on Drug Offences, and also took into account the fact that the Psychoactive Substances Act 2016 had provided for a maximum penalty of seven years’ imprisonments in the absence of any injury - even though the legislation had not been in force at the time of the offences.

‘Excessive sentence’

Pacitti challenged his sentence, but in June 2019 his appeal was refused, as the court was not persuaded that the sheriff’s reference to the English sentencing guidelines had been error, nor was it persuaded that there was any room for distinction between the two accused based on the circumstances of the offences.

However, in October 2018, a differently constituted court had allowed Brocklehurst’s appeal and reduced his sentence to three years and nine months, from a starting point of five years.

The court held that the sheriff had not been entitled to take into account the fact that, subsequent to the offences, parliament had introduced a new maximum penalty of seven years for supplying psychoactive substances.

The court also considered that the sheriff erred in taking into account sentencing guidelines which applied to proscribed drugs.

Following the refusal of his appeal Pacitti applied to the SCCRC, and in deciding to refer the case, the commission had regard to the “tension” between the two Appeal court decisions - one of which found no error on the part of the sheriff, and the other which identified two errors in relation to matters taken into account.

The SCCRC considered that a miscarriage if justice may have occurred by reason of the “excessive starting point” which fell “outwith the range of appropriate sentences”.

‘Comparative justice’

Delivering the opinion of the court, the Lord Justice General said: “The court agrees with the SCCRC’s analysis in relation to the sheriff taking into account irrelevant considerations, notably the English Sentencing Council’s Drug Offences Definitive Guideline.

“The supply of proscribed drugs is not analogous to culpable and reckless conduct of this type.

“In addition, the subsequent determination by Parliament that a seven-year maximum penalty should be imposed for the sale of psychoactive substances was not relevant given the timing of the offences.

“There were grounds upon which the two co-accused could have been distinguished.

“The appellant had a significant criminal record. He was aged 28. Mr Brocklehurst was aged 61 with no criminal record.

“On the other hand the appellant had pled guilty at an earlier point than Mr Brocklehurst and this perhaps tipped the scale back into balance.

“In all the circumstances, the court considers that it is appropriate that both accused should, as the sheriff had determined, have been sentenced to the same period of imprisonment.

“Comparative justice therefore requires that the appellant’s sentence be reduced to one of three years and nine months’ imprisonment (from a starting point of five years).”