APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lord Mackay of Drumadoon	2010 HCJAC113 XC550/10 & XC561/10 OPINION OF THE COURT delivered by LORD CARLOWAY in APPEAL AGAINST SENTENCE by JAMES ALEXANDER WILL First Appellant; and ALLAN BRUCE McKAY SMITH Second Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

First Appellant: C M Mitchell; David E Sutherland, Aberdeen

Second Appellant: C Smith; Latham & Co, Dumfries

Respondent: Small AD; The Crown Agent

14 October 2010

[1] On the 23 June 2010, the appellants appeared at a Preliminary Hearing at the High Court in Edinburgh, when they pled guilty to concern in the supply of cocaine, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, on the A74(M) Carlisle to Glasgow road and at addresses in the Aberdeen area. The dates of Mr Will's offences, in terms of his plea, were between 20 May and 20 July 2009, whilst he was on bail from December 1998. Mr Smith pled guilty to offending only between the 6 and 20 July.

[2] The appellants had originally appeared on two petitions. The first alleged concern in the supply only in the Dumfries area on 20 July. The appellants had been released on bail after their first appearance. However, on 30 July, they appeared on a second petition, for the Aberdeen end of the activities ultimately libelled, on 3 August. They were again released on bail. Mr Will had offered to plead, under the procedure in section 76 of the Criminal Procedure (Scotland) Act 1995, on 18 March 2010. Although reference was made to various to-ings and fro-ings between Mr Smith's agents or counsel and the Crown, the date of his positive offer to plead, in the terms which proved acceptable, was 15 June 2010.

[3] The circumstances were that police intelligence indicated that a specific BMW would be returning to Scotland on 20 July 2009, carrying controlled drugs. The car was stopped on the A74(M) with Mr Will driving and Mr Smith in the front passenger seat. Mr Smith had a plastic bag containing 54.5gms of high purity cocaine. Almost a kilo of the common bulking agent benzocaine was found in the boot. The cocaine was a 2 ounce deal, which would wholesale at £2,000 but, if bulked to appropriate levels, could realize as much as £25,000 to £31,000 on the retail market. Messages on the mobile phones of both Mr Will and Mr Smith were drug related. In addition, Mr Smith had almost £600 in cash in his possession and Mr Will had some £300.

[4] Having stopped the car, a search of the common address of Mr Smith and Mr Will in Aberdeen was conducted. A hydraulic press of the type used to package cocaine was found in a garage attached to that address. A further 6.89 grams of cocaine was found in an Audi car, which was opened with a key found in Mr Will's possession. The drugs could wholesale at £250 to £300, but retail in gram deals for between £350 and £450.

[5] Further information prompted the police to go to a wooded area in Bucksburn and recover a waterproof bag, on which Mr Will's fingerprints were found. This bag contained a further 123.5 grams of cocaine and half a kilogram of the bulking agent lignocaine, together with four sets of scales. This amount of cocaine was not a recognised measure and was of low purity. It could wholesale for £4,500 and retail at between £7,000 and £8,800 in gram deals.

[6] Mr Will was concerned in supplying cocaine for some two months in terms of his plea, whereas Mr Smith had been involved only for two weeks. It was accepted that Mr Smith had had no involvement with the drugs contained in the Aberdeen area; that is in the Audi or the woods.

[7] The personal circumstances of Mr Will are that he is 27 and single. The social enquiry report revealed that he had had a relatively stable upbringing, obtaining 5 standard grades at school. He had worked as a chef before joining the Army. He had been in the Army for some six years, before being discharged following his arrest in December 1998 for acting as a courier in the supply of cocaine. He was eventually sentenced for that offence on 27 October 2009, to 2 years and 8 months imprisonment (discounted, somewhat generously, from 4 years).

[8] In mitigation in respect of this offence, and indeed the earlier one, it was explained that Mr Will had become involved in gambling and had engaged in drug trafficking as a means of repaying his debts. The sentencing judge considered that the starting point for the sentence on Mr Will, who had been couriering, packaging and retailing drugs, should be 8 years, including 6 months for the bail aggravation. He applied a discount of 25%, resulting in a sentence of 6 years, which was made consecutive to the earlier sentence. The reason why he was not afforded a greater discount was that he had appeared on the two petitions in July and August 2009 and, as the sentencing judge explains, the section 76 plea was not tendered until March 2010, long after even his sentence on the earlier offence. In addition, the sentencing judge also took into account certain other factors, notably that the appellant had been caught "red handed" and, so far as utilitarian value was concerned, the witnesses who would have been involved in the trial were police officers rather than lay members of the public.

[9] Mr Smith is aged 25 and single. He also comes from a relatively good family background and had attained 8 standard grades at school. He had worked in the oil industry in his late teens and early 20s. The social enquiry report revealed that, around this time, he had started engaging in excessive alcohol consumption and the taking of illegal drugs, including cocaine. He had worked for sometime as an offshore radiographer and had later started his own coffee and sandwich business in Aberdeen. It had been successful initially, but he too had succumbed to the lure of gambling; losing £9,000 on a single occasion. He had been threatened with serious violence if he did not repay his debt and had become involved in offending as a means of repaying that debt. A letter from Grampian Police, dated 15 May 2009, had intimated to him that the police had information that he might be the intended victim of a potentially serious assault and that there was a risk to his life.

[10] In Mr Smith's case, it is not without significance that he has a substantial criminal record for road traffic offences, public disorder, violence and dishonesty. This record culminates in a conviction for assault to severe injury on 14 June 2009, which resulted in the imposition of a period of probation on 14 July 2009; a matter of days before his arrest on the A74(M) and in the middle of the period during which he admitted he was concerned in the supply of Cocaine. The sentencing judge took six years as a starting point and discounted that by 15%; resulting in a sentence of 5 years and 1 month.

[11] On behalf of Mr Will, and under reference to McGill v HM Advocate 1995 SCCR 35, it was argued that the starting point of 8 years was excessive, having regard to its combined effect with the earlier sentence. The appellant had effectively been given a starting point of some 12 years, once the two episodes were taken into account. In that regard, both offences could have been libelled on the same indictment and dealt with at the same time. In addition, it was stated that the starting point was excessive because of the personal circumstances of the appellant, including his unblemished record in the Army. The second submission was that the discount given for the early plea was insufficient. Under reference to Du Plooy v HM Advocate 2005 JC 1, it was submitted that the practical inevitability of a plea of guilty was something which could not be pressed too far, when gauging utility. In addition, the nature of the witnesses was of little overall significance. So far as timing was concerned, there had been a peculiarity stemming from the existence of the two petitions.

[12] The court is persuaded that there is substance in the submission that the combined effect of the sentences for concern in the supply in December 2008 and from May to July 2009 was excessive, involving a starting point of 12 years. On the other hand, the court has to bear in mind that both of these offences involved Class A drugs of significant value. In particular, the offence under consideration in this appeal involved not only the transportation of cocaine but its packaging and retailing. Having regard to all of these factors, the court considers that an appropriate starting point, if the court had been looking at the two offences together, would still have been one not exceeding 11 years. Accordingly, the starting point for the sentence under appeal will be taken as 7 years, again including the 6 months for the bail aggravation.

[13] On the other hand, as has been stressed often by the court, the question of discount and its calculation, remains very much within the discretion of the sentencing court, having regard to all the circumstances. The court is entitled to take into account the timing of the plea and the fact that, although this plea proceeded upon a section 76 letter, it was not tendered until many months after the appellant had appeared on the petitions. The weight to be attached to the nature of the witnesses and whether it was inevitable that a plea would have to be tendered is again something which the sentencing judge has to assess. It cannot be said that the sentencing judge took into account any irrelevant factors or that he failed to take account of any relevant ones. He has balanced all the factors and applied a reasonable discount of 25%. The court is not persuaded therefore that this level of discount should be interfered with. The effect of that will be that the sentence in respect of Mr Will will be reduced to 5 years and 3 months, but this will remain consecutive to the earlier period of 2 years and 8 months.

[14] On behalf of Mr Smith, the submission was also that the starting point of 6 years was excessive, having regard to the real nature of the threats made, as demonstrated by the police letter. Emphasis was also placed on the limited involvement which Mr Smith had had in respect of the offence; involving only the Dumfries end. The trial judge had been bound to take into account a number of other mitigatory factors, including that Mr Smith was not going to make any profit beyond returning any reward to his creditors. The previous convictions were not analogous and the social enquiry report had revealed the positive side of Mr Smith's nature.

[15] It was argued that the discount afforded to this appellant was also insufficient. Although the trial judge had reported that no section 76 plea had been offered, what had occurred was that such a plea had been offered, but not one which had proved acceptable to the Crown. By the date of the first Preliminary Hearing on 7 June, negotiations had been entered into between the agent and the Crown as already noted. This had culminated in a plea being accepted at the next Preliminary Hearing.

[16] In so far as the substantive part of the appeal is concerned, the court is not persuaded that the sentence was excessive. Mr Smith has a significant criminal record, albeit of a non analogous nature. He was engaged in this episode of cocaine dealing at a point when he was either on deferred sentence or on probation for an assault to severe injury in June 2009.

[17] So far as the discount is concerned, the court reiterates what it has already said in relation to Mr Will's case. It is important, if an accused is to take advantage of a formal discount for an early plea, that he tenders that plea in a formal sense at an early stage or at least indicates a willingness to plead in writing. The reality here is that this was not done. What the court is left with, so far as the formal record is concerned, is a plea tendered at a second Preliminary Hearing. In these circumstances, the court does not consider that the sentencing judge erred in any way in selecting a discount of 15%. The appeal in Mr Smith's case must therefore be refused.