HMA v Liston Craig Pacitti and Paul Brocklehurst

At Dundee Sheriff Court today, 24 April 2018, Sheriff Alastair Brown sentenced Liston Pacitti and Paul Brocklehurst to four-and-a-half years’ imprisonment after each accused pled guilty to the culpable and reckless supply of “legal highs” which they knew would cause danger to health if consumed.

On sentencing, Sheriff Brown made the following statement in court:

“Each of you has pled guilty to the culpable and reckless supply to named persons of substances which you knew were not fit for human consumption and would cause danger to their health if they consumed them. You knew that they were being consumed by those people or that they intended to consume them.

“In terms of your pleas of guilty, you admit that you endangered their health and that actual injury was caused to some of them. I have noted that, although the charge does not now say that you knew that the substances would endanger the lives of users, it does still say that their lives were in fact endangered and you have pled guilty to that.

“You were supplying substances which are, chemically, closely analogous to various controlled drugs. They are highly addictive and the effects of consumption are reported to be more intense than controlled drug equivalents.

“They can cause and have been associated with numerous medical problems including increased body temperature, increased and decreased heart rate and blood pressure leading to strokes, dehydration, heart attacks and death. They are associated with acute mental health problems including psychosis, anxiety and depression. They can cause severe panic attacks, states of fear and powerful hallucinations. If injected, they can cause bacterial infections and blood clots. 

“There is no known drug reversal that will work with them. They represent a significant public health concern and the statement of Dr Fletcher, which formed part of the material in this case, points out that the sale of these substances from shops created, in the minds of the users, an entirely false sense of legitimacy.

“Although you were being prosecuted on the basis that you acted together, you have pled guilty on a basis that separates you from each other. I have come to the conclusion that there is nothing to choose between you, but I recognise the basis on which you have pled guilty.

“It can also be said on your behalf that you, Mr Brocklehurst, have no criminal record and that your record, Mr Pacitti, is of limited significance – though a conviction on indictment for assault to severe injury does you no credit.

“Mr Pacitti, your offence took place over a period of 17 months at a series of addresses in Arbroath and Montrose and you have admitted supply to twelve named individuals, one of whom was injured. Mr Brocklehurst, your offence took place over a period of just over two years at an address in Perth and you have admitted supply to fifteen named individuals, including a child of 15 and a child of 13. Seven of them were injured, including the 13 year old child. 

“You set up shops from which to sell the substances. On the narrative given to me, the daily takings in those shops ranged from several hundred pounds to £2,500.

“The existence and operation of those shops caused serious concern to the communities in which they were situated. Community leaders and members of the public asked you to stop and protested against the operation of the shops.

“The police warned you about the effects of the substances you were selling. The local newspaper ran a series of articles about the misery you were causing. The BBC highlighted the problem in a documentary. You thumbed your noses at them all.

“It is perfectly clear that you were exploiting cynically and with no regard for the effects on your customers or the wider community, what you thought was a gap in the law in order to make significant amounts of money. But you were wrong.

“The crime to which each of you has pled guilty is not a new crime but merely a modern example of conduct which Scots law has for long regarded as criminal. Such conduct consists in reckless actions of any kind which cause real injury to the person.

“Since at least 1842, the wilful and reckless administration of a dangerous substance to another causing injury or death has been recognised as an example of that crime. In 1983 the High Court, dealing with shopkeepers who supplied glue sniffing kits to children, made it clear that it makes no difference that the victim consumes the substance themselves, if the supplier knew the sort of risk that the substance posed and knew that the person to whom he supplied it intended so to consume it. So, although the absence of a regulatory regime equivalent to the Misuse of Drugs Act led to these substances being referred to as ‘legal highs’ that was, in Scotland at least, entirely misleading.

“You might feel aggrieved to have fallen foul of this offence. You might feel that the widespread use of the expression ‘legal highs’ gave some excuse for what you did. I do not think you would be entitled to feel like that.

“In setting up shops to supply substances which you knew were dangerous and in persisting with your enterprises in face of public concern, media concern and warnings from the police, you demonstrated that you were lost to all human decency, placing personal profit above the health of those from whom you sought to make that profit.

“Those who, seeking the wellbeing of their communities, tried to persuade you to desist, and at whom you thumbed your noses, might well feel that finding yourselves about to be sentenced serves you right. And, of course, one of the risks which attends any attempt to exploit a loophole in the law is that it might turn out not to be a loophole at all.

“Parliament has now legislated, in section 5 of the Psychoactive Substances Act 2016, so as to create an offence of supplying psychoactive substances. Although that offence is arguably less serious than the offence to which you have pled guilty – because it consists in the supplying of the substance and does not address the consequences where a user is harmed by it – I think I should have regard to the maximum penalty provided for in that legislation. That penalty is seven years’ imprisonment. Apart from the statutory aggravations, of supplying psychoactive substances near schools or using children as couriers, your conduct was equivalent to as serious an example of the offence which Parliament has now created as it is possible to imagine.

“Any sentence other than one of imprisonment is out of the question. I have decided that the correct sentence in relation to each of you is one of four years and six months’ imprisonment, discounted from six years to take account of the stage at which your plea was tendered. That will be backdated to 20 March.”