Jamie Richard John Waugh George v. His Majesty’s Advocate [2023] HCJAC 38

Note of appeal against sentence:- The appellant pled guilty on indictment at a continued first diet at the Sheriff Court to a charge of culpable and reckless behaviour to the danger of life by culpably and recklessly, over a period of around 4 ½ years supplied the public with a dangerous substance, namely 2,4-Dinetrophenol (DNP) for human consumption, which he knew would be consumed and well knowing that the substance was unsafe for human consumption, injurious to health and potentially lethal if ingested, and he did this to the danger of life. The appellant was sentenced to a period of 37 months imprisonment, discounted from 48 months on account of the plea of guilty. The appellant appealed against the sentence imposed on the ground that the period of imprisonment imposed was excessive. It was submitted on behalf of the appellant that the sentence was excessive as:- (1) DNP was not illegal or a controlled drug and was widely available on Amazon until November 2022; (2) the number of fatalities in the UK attributable to the use of DNP was 33 in the 15 years up to 2022 and represented a small fraction of the number of deaths in Scotland related to the consumption of controlled drugs; (3) the sheriff had speculated on the appellant’s financial gain and any suggestion that it was a large scale commercial operation was inaccurate; (4) reference by the sentencing sheriff to the sentencing guidelines from England and Wales on the supply of psychoactive drugs was appropriate, however, they had been incorrectly applied as for the starting point to be 4 years the sheriff must have concluded that the appellant had a leading role and that the level of harm placed it in category 1 whereas on the information available to the court his role was significant rather than leading and the harm level was category 2; and (5)the Criminal Justice Social Work Report outlined a number of mitigating factors including his lack of previous convictions, his pro-social lifestyle and him providing through his business for his family and the employees of his business. Here the court considered the sentence was excessive and allowed the appeal. The court noted that in the absence of authority the guidelines from the Sentencing Council of England and Wales on the supply of psychoactive substances were useful and having regard to them considered the appellant did fall into the leading role category of what was being done on a commercial scale and fell within category 1 giving a a starting point of 4 years custody with a range of 3 - 6 years. Having regard to the scale of the operation the court considered that the scale of the commercial operation was higher than contended by the appellant but less than the sheriff appears to have assumed and the court took the view that a starting point of 3 years imprisonment was appropriate having regard to the mitigating factors present. The court quashed the sentence of 37 months imprisonment and replaced it with a sentence of 28 months imprisonment discounted from 3 years on account of the plea of guilty.