APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lady Smith Lord Uist	[2011] HCJAC 53 Appeal No: NO. OPINION OF THE COURT delivered by LORD BONOMY in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by JOHN JAMES Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Graham; John Pryde & Co SSC

Respondent: Harper, A.D.; Crown Agent

6 May 2011

Procedural History

[1] On 4 June 2010 at the High Court in Glasgow, the appellant was convicted by a majority on five charges in the following terms:

"(001) between 1 September 2008 and 11 September 2008, both dates inclusive, at J J Autos, 1-7 Etna Street and at the adjacent yard at 6-10 Janesmith Street, Etna Industrial Estate, both Wishaw, you JOHN JAMES and MARTIN JAMES DICKSON were concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971, to another or others, in contravention of section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, section 4(3)(b);

(002) between 1 September 2008 and 11 September 2008, both dates inclusive, at J J Autos, 1-7 Etna Street and at the adjacent yard at 6-10 Janesmith Street, Etna Industrial Estate, both Wishaw, you JOHN JAMES and MARTIN JAMES DICKSON were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971, to another or others in contravention of section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, section 4(3)(b);

(003) on 11 September 2008 at J J Autos, 1-7 Etna Street, Wishaw you JOHN JAMES did, without lawful authority or reasonable excuse, have with you in a public place an offensive weapon, namely a crossbow: CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995, section 47(1);

[....]

(005) on 11 September 2008 at J J Autos, 1-7 Etna Street, Wishaw you JOHN JAMES did have in your possession a firearm, namely a shotgun, to which section 1 of the Act aftermentioned applies without holding a firearms certificate in force at the time and you did commit this offence in an aggravated form within the meaning of section 4(4) of the said Act in that the barrel of said shotgun had been shortened to a length less than 60.96 centimetres (24 inches): CONTRARY to the Firearms Act 1968, section 1(1)(a) and 4(4) as amended by the Firearms Amendment Act 1968;

and

(006) on 11 September 2008 at J J Autos, 1-7 Etna Street, Wishaw you JOHN JAMES did have in your possession without the authority of the Secretary of State or Scottish Ministers a prohibited weapon, namely a shotgun, being a firearm with a barrel less than 30 centimetres in length or which has a length of less than 60 centimetres overall: CONTRARY to the Firearms Act 1968, section 5(1)(aba) as amended by the Firearms (Amendment) Act 1997".

The appellant's co-accused, Martin James Dickson, was found guilty by a majority on charges 1 and 2. The Advocate depute had withdrawn charge 4 at the close of the Crown case. That was a charge against the appellant alone, an allegation of possessing an offensive weapon, a carbon dioxide powered air pistol, in a public place.

[2] The appellant's Note of Appeal included three grounds of appeal against conviction and one relating to sentence. Leave to appeal was granted in respect of the first two grounds relating to conviction and the appeal against sentence. In ground of appeal 1 the appellant maintained that the trial judge should have sustained a submission of no case to answer in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 in relation to charge 3 on the basis that the locus of possession of the loaded crossbow was not a public place. In ground of appeal 2 he contended that a similar motion in relation to charges 5 and 6 should have been sustained on the basis that there was insufficient evidence from which it could be inferred that the appellant had knowledge of the presence of the concealed loaded shotgun. On 6 May 2011, having heard submissions from Mr Graham, counsel for the appellant, and from the Advocate depute, we refused the appeal against conviction on both grounds. Thereafter we heard submissions from Mr Graham in support of the appeal against sentence; we decided that it also should be refused. We now give our reasons for these decisions.

Background Circumstances

[3] At the time of the offences the appellant was 46 years of age. He owned and operated a business known as J J Autos from premises at 1-7 Etna Street, Wishaw which were let to him. He is disabled and confined to a wheelchair since being shot some years ago. He continues to have a catheter inserted and he suffers from blood pressure problems.

[4] Ariel photographs in Crown production 39 showed that the premises included two buildings in an "L" shape configuration, one leg of the L comprising a garage workshop with "Tyres, Batteries, Exhausts" on the pitched roof, and the other being a single-storey, flat-roofed building comprising various rooms. There were two entrances to the premises, being a large garage door into the garage workshop at the top of the "L" and an entrance door into the single-storey building on the side facing away from the workshop. Anyone entering the premises from either side could then enter either building. Immediately outside the single-storey building was a car parking area enclosed by a fence. A large gate allowed access through that fence into the car park. The evidence at the trial suggested that that gate was open during business hours and closed thereafter. Outside the entrance to the workshop was another small car parking area which was apparently accessible at all times. Evidence led during the trial demonstrated that people entered the premises via both parking areas and doors.

[5] Immediately to the right on entering through the door of the single-storey building a door gave access to an area which was described on the plan prepared by a police officer as "shop". Counsel for the appellant described it as a "store/office". For the purposes of charges 5 and 6 what mattered was whether it could be said that the public had access to it. Beyond that door was a corridor running left and right the length of the building. In the corridor to the right was a secure door beyond which the corridor gave access to two other rooms described on the plan as "gym" and "CCTV office".

[6] When police officers arrived to execute a drugs search warrant in the early afternoon of 11 September 2008, they were able to go straight into the shop area without obstruction and there they found the crossbow and the air gun. To gain access to the CCTV office it was necessary to force open the secure door in the corridor. There they found the shotgun concealed in the wall.

[7] In the course of the search they also recovered significant quantities of drugs and money as well as various drug-related paraphernalia. On a table in the CCTV office, which contained CCTV monitors and the base unit for the CCTV system at the premises, were found digital scales which bore traces of both diamorphine and cocaine, cut gloves, packages containing white powder, quantities of cut plastic bags, knives, scissors, and a herb cutter which was said to have white powder visible on it. The white powder was cocaine. The herb cutter was an item which could be used to chop compressed powder drugs. Expert opinion evidence from a detective sergeant was to the effect that twelve of the packages were consistent with being typically underweight, half-gramme deals of cocaine, and that the CCTV office table bore items which clearly demonstrated that packaging of cocaine was going on there. The twelve packages would have sold for £20 each. Three or four other packages containing small amounts of cocaine were also found. The appellant was in possession of a key for a safe in the floor of the CCTV office in which was found £1,305. He was also found to be in possession of two separate bundles of cash; £2,895 and £1,495.

[8] Outside the building, but within the grounds of the garage premises in a triangular area bounded by the two legs of the L and the boundary fence of adjoining premises, following the lead of a drugs sniffer dog, police officers found buried in the ground a rucksack containing four packages of diamorphine. Three of these packages were quarter kilograms of diamorphine and the other package contained 140 grammes, exactly 5 ounces, of diamorphine. Expert opinion was that the fourth package was almost certainly the residue of a quarter kilogram from which some diamorphine had already been dispensed. The potential yield of a kilogram of diamorphine would be £70,000 if broken down into £10 deals.

[9] The fence separated the outside area where the rucksack was found from the adjoining premises of a company called Beaver 84. Later in September, in a bottle on these adjoining premises, were found three quantities of cocaine mixed with diamorphine totalling about 19 grammes in weight. This quantity would have been worth a few hundred pounds, but no specific value was given. Also in that bottle were found eleven packages of diamorphine each containing about 3.5 grammes, recognisable as eighth of an ounce deals. These had the potential to yield £2,640. It was implicit in the verdict that the jury had accepted that the bottle was part of the supplying operation.

[10] No drugs or drug dealing paraphernalia were found within the shop area. However, that area was one of four areas covered by a CCTV system, the other three being the workshop and each of the car parks including the streets beyond. The footage recorded between 1 and 11 September was recovered. The police search had also been video recorded. One officer spent several days giving evidence under reference to what could be seen in both, having studied them in detail.

Charge 3

[11] The issue in relation to this charge was whether there was sufficient evidence to entitle the jury to hold that the shop area was a public place for the purposes of the Criminal Law Consolidation (Scotland) Act 1995, section 47. In section 47(4) a public place was at that time defined as including "any road within the meaning of the Roads (Scotland) Act 1984 and any other premises or place to which at the material time the public have or are permitted to have access whether on payment or otherwise". The relevant ground of appeal, ground 1, was as follows:

"That the learned trial judge erred in law in refusing a submission made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that there was insufficient evidence to allow charge 3 to be considered by the jury. This charge alleged that the appellant had possession of a loaded crossbow in a public place. It was submitted on the appellant's behalf that the locus of possession was not a public place. Said locus was an office and stock area within a car repair garage. It was one through which two doors had to be passed in order to gain entry, and offered a counter separated from [a] reception area by a sliding glass screen, beyond which the general public could not pass. There was no evidence at trial that anyone could pass into this area without either the invitation of the appellant or anyone employed at the garage premises. It was thus a place which the Crown were unable to demonstrate as one to which the public had access. It is submitted that refusal of the statutory submission made in respect of this charge represents a miscarriage of justice".

[12] As part of the Crown submission, and with the approval of Mr Graham for the appellant, the Advocate depute played parts of the CCTV footage and parts of the video footage of the search. That showed that on shelving within the shop area were located new car batteries and bottles of oil displayed in the way in which one might see such items displayed for sale in a repairing garage shop. There was also a desk with a telephone, a computerised till, and a laptop computer. On a low-level, open shelf below the telephone and till were the crossbow and air pistol.

[13] In his submission Mr Graham recognised that the footage had shown people who were apparently not employees entering the premises and walking into the shop area. However, he pointed out that there had been no parole evidence led from anyone who did call at the premises. There was no evidence of whether callers had legitimate business, or were making inquiries about legitimate business, or had connections with the proprietor or his staff. That meant that the Crown could not demonstrate that that area was in fact a shop trading or inviting trade. It could not be shown that anyone entering was a customer of the garage. There was nothing indicative of commerce, such as resort to the till or taking an item from the shelf and passing it to the customer. He said that the extracts of footage shown to us were a fair reflection of the entirety of the footage shown at the trial. People entering the area appeared to spend time with those working there, but not on the basis of trading or of an invitation to trade. Anyone entering would have unfettered access to the till, phone, computer and fax. There was also a CCTV screen adjacent to the phone which the appellant could be seen to monitor, including immediately before the police entered. The area was apparently used as an office. From all these features it could not be inferred that the public had access to that part of the premises.

[14] Mr Graham drew some support from the circumstances in Normand v Donnelly 1993 SCCR 639 which recognised that a hospital cubicle was not a public place in spite of the absence of any physical barrier to entry. Entry would be refused by any doctor aware of the attempt of a member of the public to enter. In the same way the staff of the garage in the shop area were in a position to prevent unauthorised entry. The evidence did not justify the inference that those entering were members of the public.

[15] The Advocate depute emphasised four features of the evidence: (1) the door to the shop area was always open; (2) adjacent to the door was a glass partition window which could slide open but was never used; (3) the main entrance to the single-storey building was unlocked and sometimes held in an open position; and (4) the gates to the car park were generally open during business hours. So there was unimpeded access to the shop area. That was confirmed when the police executed the search warrant. They were able to walk straight into that area. The trial judge had stated in his report to the court that the footage for the period 1 to 11 September from the CCTV system showed a number of members of the public entering the shop area both during and after normal business hours. That was the evidence of the police constable who had reviewed the footage at length. Some of these people could be seen apparently buying drugs there and that is what the officer said that they were doing.

[16] The images for 10 September displayed a male person, apparently there on garage business, walking into the shop area and the appellant seeking to conceal something from him. The crossbow was at that time located exactly where it was ultimately found on 11 September. The officer also gave evidence that at on at least one occasion the footage showed the appellant handling an item which was consistent in size with an eighth of an ounce deal of diamorphine, like those found in the bottle on the adjoining property. On another occasion he was seen to hand a knotted plastic bag to his co-accused who handed it to an unidentified person in the shop.

[17] Among the extracts of the footage shown to us were images of a male entering and standing around the shop area, being ignored by another male working at the laptop, who appeared to be aware of his presence. When the male left, another male entered. Later that same day a male entered the area and spoke for some time to the appellant who handed something to him. About 35 minutes later two males, a child, a female and the accused could be seen in the area. The gates to the car park and the entrances to the premises were open. The accused gave something to one male who left. These three incidents occurred in the afternoon of 3 September.

[18] Footage from 10 September showed the appellant in the workshop at 09.21. Then at 11.34 he was in the shop area. The car park gates, the main entrance to the office and the door into the shop area were lying open. The crossbow could be seen where it was later found by the police. A male in overalls was on the telephone. Another male was leaning against a shelf at the glass partition. A male then ran in the open car park gates and was seen in the shop appearing to look at stock on the shelves. Four minutes later he was seen to look under the till at the shelf where the crossbow was. Shortly thereafter he ran out through the open gates. Then a male entered through the workshop and went into the shop area. There he spoke to the appellant and appeared to look at the stock before handing something to the appellant and then leaving in the direction of the workshop. On the following day, when the police entered at about 12.45, the appellant was working at the laptop in the shop area.

[19] The issue for the trial judge in addressing the submission of no case to answer for the appellant was simply whether there was sufficient evidence to entitle the jury to conclude that the locus where the crossbow was found was a public place as defined in section 47(4) of the Criminal Law (Consolidation) (Scotland) Act 1995. The trial judge referred in his report to Normand v Donnelly, cited above, and Owens v Crowe 1994 SCCR 310 which related to events in a discotheque. We did not find either to be of any particular assistance in answering that question in this case. The same applies to the unreported case of William Templeton v HMA, 26 August 2008, which came to the attention of the trial judge after he had rejected the submission. There it was held that a common stairway serving a number of flats, which could be entered because the lock to the external controlled entry door was broken, was not a public place since access was not by invitation or toleration. These cases all illustrate that whether the evidence satisfies the terms of the statute is very much a fact specific matter which depends upon the circumstances of each individual case.

[20] In our opinion the trial judge was entirely correct when he decided that there was a case to answer and in particular that the evidence entitled the jury to decide that the shop area was a place to which the public had or were permitted to have access. The layout and condition of the premises during business hours allowed free access to the shop area and indeed provided for access and exit by more than one route. The premises had all the appearance of being open for business. There was no evidence of any barrier, including the intervention of any of the staff, to prevent free access to the shop area. People who were apparently random callers entered the shop area without obstruction. All of that was entirely consistent with what happened when the police arrived to execute the search warrant. They simply drove through the gates, and then ran through the main entrance and the door to the shop area quite freely. The crossbow was openly visible. The general impression created was one of freedom of access to that area to anyone calling at the premises. We accordingly rejected the first ground of appeal.

Charges 5 and 6

[21] As we have already said, in order to gain access to the CCTV office the police had to overcome the security of a door in the corridor leading to the office. That office housed the CCTV base unit and some monitors and was the location of drugs and associated paraphernalia referred to above. There was also a safe secreted in the floor in which was found £1,305. One police officer thought that the keys to the safe had been part of a bunch of keys given to him by the appellant. The police understanding was that the cash found was garage takings.

[22] One of the police team indicated that he saw something in the plasterboard on the wall in this room which suggested that it had been pierced. There was an unusual sound on tapping the wall there, a different sound to other sections. His attention had been drawn to the area by the appearance of two seams in the wall which were visible to the eye in a way which was not apparent on the search video recording. Another officer described this area of the wall as having the appearance of having been repaired. When asked whether he had formed an impression as to how long it had been in place, he answered:

"No, but it was not as long as the whole thing, it was a repair or a replacement. You could see a square with polyfilla or a filling agent".

In cross-examination he agreed that there was no way of knowing how long it had been there or when the plasterboard had been put up. The area was rectangular in shape, and on the footage shown to us folded down like a flap secured by the lower short end of the rectangle like a hinge. The repaired section had been pulled open using a hammer.

[23] Behind that the shotgun was found in what witnesses described as a chiselled compartment within the brickwork of the wall. It had been dismantled into three sections wrapped in a towel contained within a black plastic bin bag. When the appellant was asked who the shotgun belonged to, he replied: "I've no' got a clue".

[24] The police officer who gave expert opinion evidence indicated that in his experience weapons are sometimes found in association with controlled drugs. He also said that, if someone is involved in controlled drugs at the level of having a kilogram of diamorphine for sale: "It is a furtive and dangerous activity. Gang wars over drugs are well documented". Sufficient evidence had been led in relation to charges 1 and 2 to establish the appellant's concern in the supplying of drugs. There was also evidence from the CCTV footage of the appellant and his co-accused transferring items in the shop area, including money, one to the other and to and from other people. The co-accused was convicted of charges 1 and 2 in exactly the same terms as the appellant.

[25] The material terms of ground of appeal 2 relating to charges 5 and 6 were these:

"That the learned trial judge erred in law in refusing a submission made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 that there was insufficient evidence to allow charges 5 and 6 to be considered by the jury. ... There was no evidence to demonstrate that the appellant had ever handled the weapon, nor was any circumstantial evidence led from which it could be inferred that the appellant had knowledge of the weapon being concealed from where it was recovered. There was evidence led demonstrating that others had access to the premises in the absence of the appellant, and evidence that the appellant would have been unlikely to have the ability to have personally concealed the weapon due to his paraplegia. The Crown founded upon the fact that the appellant was the leaseholder of the premises and exercised management of them. In the absence of evidence to support the date at which the weapon had been concealed, or any evidence from which knowledge on the part of the appellant could be inferred, it is submitted that there was not a sufficiency to allow the jury to consider this charge. It is submitted that refusal of the statutory submission made in respect of this charge represents a miscarriage of justice".

[26] In developing his argument in support of that ground of appeal Mr Graham explained that the appellant could not access the CCTV office without assistance and there was no evidence of his ever having been in that office. The CCTV footage showed that others had access to the office. There were therefore others who could have had possession of the weapon, i.e. who could have known of it and had control of it. He referred in particular to a passage in the footage for 4 September in which the co-accused was seen to unlock the car park gate and enter the premises in the company of others after hours, and to the fact that the co-accused alone had been connected directly to the CCTV office by the evidence, his mobile phone having been found there. The appellant had taken over the lease of the premises a little over a year before the police search. There was no evidence of the condition of the masonry of that room as at the date the lease was taken, and no evidence had been led from the landlord of the interest in the room of any prior tenant or indeed if there had been a prior tenant. The office bore a fairly modern appearance, but there was no evidence of when or by whom the plasterboard walls had originally been completed. There was also no evidence of how the gun had come to be in the wall. Because of his paraplegia the appellant was incapable of executing the work necessary to conceal the weapon.

[27] Mr Graham referred to a number of authorities, but did so with the aim of providing general guidance to the court rather than identifying any decision or passage that would be of particular assistance to the court. We agreed with the submission of the Advocate depute that none was of particular assistance in determining the issue in this case. A typical example is White v HM Advocate 1991 SCCR 555 in which it was held to be insufficient to bring home possession to the tenant of a house that cannabis resin was found in a kitchen cupboard. Although she was in the house at the time of the search and had stayed there the previous night, evidence was led that she used the house only occasionally and that other persons, such as her brother, had access to it. We found that case to provide no more than general assistance in relation to the question of possession, which, like the question whether a locus is a "public place", is usually a fact-specific issue dependent upon the circumstances of the particular case. Concealment in an area created for that purpose by building work, including gouging out a compartment in brickwork and removing and replacing an area of plasterboard, is quite different from placing an item in a cupboard, although each has this in common that the significance of the place of concealment depends upon the whole circumstances of the case. Each of the other authorities referred to by Mr Graham, Bath v HM Advocate 1995 SCCR 323, Campbell v HM Advocate [2008] HCJAC 50, 2008 SCCR 847, and Fulton v HM Advocate [2005] HCJAC 4, 2005 SCCR 159, is simply an illustration of the significance of the place of concealment, the relationship of the accused and others with that place of concealment, and the whole other circumstances of the case in determining in each individual case whether there is sufficient evidence of possession by the particular accused.

[28] In response the Advocate depute founded on a number of factors which, she argued, taken together entitled the jury to infer that the appellant knew of the presence of the shotgun and had control of it. These were the following:

(i) It was an agreed fact that the appellant was tenant of the premises and had been for about a year.

(ii) The business was the garage business of the appellant.

(iii) The CCTV evidence had shown his presence in circumstances where he appeared to be aware of what was going on within the premises and pointed to his having effective control of the premises.

(iv) Although the trial depute had submitted that the wall had been newly repaired and freshly painted, the Advocate depute accepted that no more could be submitted than that the wall bore the appearance of having been repaired.

(v) It was not credible that concealment of the gun could have been accomplished without the appellant being aware of it happening. This situation was not comparable to a visitor quickly secreting something behind the stock of the shop which could be done in a matter of moments. The secretion of the gun and the subsequent covering up and redecoration must have been a significant piece of work. The appellant was a man who paid close attention to the CCTV monitors and took a close interest in the business and premises.

(vi) The jury were entitled to reject as too improbable the possibility that a previous occupier would have gone to the trouble of secreting the gun on vacating the premises.

(vii) Other weapons, namely a loaded crossbow and an air pistol, of both of which the appellant was aware, were found in the premises, which was indicative of the willingness of the appellant to have weapons on his premises.

(viii) The appellant was involved in significant drug trafficking at the premises and expert opinion evidence indicated a connection between drug dealing and the presence of weapons.

[29] We were entirely satisfied that these various factors, which are outlined in the trial judge's report as those on which he relied in arriving at his decision, provided a sufficient basis to entitle the jury to infer that the appellant both knew of, and had effective control of, the shotgun. We accordingly decided that the trial judge had correctly repelled the submission of no case to answer and we refused the appeal on this ground.

Sentence

[30] Mr Graham made two submissions in support of the ground of appeal that the sentence imposed was excessive.

[31] The first submission was that, because the drug trafficking operation was so inextricably linked to the possession of the weapons, making them integral parts of the same criminal conduct, the trial judge should have modified the overall effect of consecutive sentences to a greater extent than he had. The total sentence imposed was effectively 12 years, taking account of time served, and that was disproportionate to the level of criminality involved.

[32] The second submission was that the impact of imprisonment was and would continue to be far greater on the appellant than on the average prisoner on account of his paraplegia, diabetes and blood pressure problems. Ironically, while the appellant had the benefit of being detained in a prison which had been designed with regard to the possible presence of prisoners confined to a wheelchair, the prison staff there lacked the experience of dealing with problem prisoners that staff in older, less well adapted prisons had. When pressed to indicate what particular problems were being experienced by the appellant, Mr Graham referred to his having fallen out of bed twice and difficulties experienced in the monitoring of his diabetes and blood pressure. He also submitted that the opportunities for developing associations and relationships were very limited for him since the most common route to those was through recreational facilities which were not designed for use by a prisoner confined to a wheelchair.

[33] We considered that the trial judge had given careful consideration to both issues when he determined the sentence to impose. That is amply illustrated by the following extracts from the report of the trial judge:

"[53]....I was of the view that the presence of weapons ought to be dealt with by the imposition of sentences consecutive to the drugs offences. The crimes are different in character to drug dealing and represent a seriously aggravating feature of it which would not properly be marked or punished by a cumulo sentence or concurrent sentences. Being shot and disabled, and the murder of his brother, had not dissuaded the appellant from engaging in serious crime involving both Class A drugs and firearms. This fitted in with my impression from the evidence in the trial before me that he posed a substantial risk to the public. Protection of the public was a prominent consideration in sentencing the appellant in this case.

[54] I took account of the appellant's physical condition and recognised that for him prison would be more difficult than it would be for many other prisoners. I was prepared to accept that that may bear on the assessment of appropriate punishment. On the other hand despite his physical condition, the appellant could be seen, on the CCTV footage shown in the trial, taking an active and leading role in the drug dealing operation which was going on .... He was keeping dangerous weapons available in this context. This confirmed to me that the public required protection from the appellant, notwithstanding his physical condition.

[55] I recognised that in making the sentences consecutive I required to ensure that the total sentence was not excessive. I was constrained by a minimum of 5 years imprisonment on charge 6, but this did not seem to me to be a case in which the minimum would be sufficient. The item in question, a sawn off shotgun, was loaded with cartridges and it was plainly intended to be used if necessary to defend the drug dealing activity which was going on. ... The nature of the weapon, the fact that it was loaded and the association with a major operation supplying Class A drugs were markedly aggravating features and might have suggested a sentence rather greater than the 6 years which I selected, particularly where the appellant had previous convictions under the Firearms Act 1968. [In 2001 he had been fined £500 on each of two charges of contravening section 1(1)(A) and section 1(1)(B) respectively the Firearms Act 1968]. I contemplated whether I should impose 7 or 71/2 years on this charge.

[56] I might also have imposed 7 years for the two drugs charges had the appellant not also faced the weapons charges on which I had decided to sentence on a consecutive basis. ....[T]he appellant was plainly the major player, and was using his co-accused, and others, to assist him in the activities which he was controlling in his premises.

[57] What I resolved to do, taking account of the appellant's condition and my intention to make the sentences consecutive, was to limit the cumulo sentence on charge 1 to 6 years and the sentence on charge 6 to 6 years. ..."

[34] We considered that the approach taken by the trial judge was entirely warranted by the serious features of the appellant's criminality that he had identified in these passages. It is plain that the trial judge, in his careful approach to determining sentence, took fully into account the fact that prison would be more difficult for the appellant than it would be for many other prisoners. We were unable to identify any error in the approach by the trial judge to the determination of sentence. In our opinion the total sentence imposed was not excessive, having regard to the nature and degree of criminality involved and taking account of the personal circumstances of the appellant. For these reasons we refused the appeal against sentence.