APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Bonomy Lord Kingarth	[2011] HCJAC 63 Appeal No: XC804/10 OPINION OF THE COURT delivered by LORD BONOMY in NOTE OF APPEAL AGAINST SENTENCE by MUFUDZI KENNEDY MUNYAWIRI Appellant; against H M ADVOCATE Respondent: _______

Appellant: C Mitchell; Capital Defence Lawyers, Edinburgh

Respondent: Rodger, AD; Crown Agent

19 May 2011

[1] The appellant was convicted after trial on charges of being concerned in the supplying of (i) heroin and (ii) crack cocaine between 1 April 2009 and 3 February 2010. On 26 November 2010 he was sentenced to concurrent terms of 9 years imprisonment. The appellant was one of a number of accused involved in a variety of ways in the supplying of the drugs.

[2] In challenging the sentence as excessive, Miss Mitchell for the appellant did not question the imposition of a lengthy custodial sentence, but submitted that the period selected by the sentencing judge was excessive because he had proceeded on an inaccurate understanding of the extent of the appellant's involvement and had failed to give adequate weight to favourable features of the appellant's personal circumstances.

[3] In his report the sentencing judge made reference to the Opinion of the Court in Santini v HM Advocate 2000 SCCR 726 and to the common sense proposition stated there that a jury are entitled in appropriate circumstances to infer that, where an appellant is present and involved in dealing with drugs on a particular occasion, he must have been involved in the operation at an earlier stage. However, the propriety of any such inference will always depend upon the circumstances disclosed in the evidence, including in particular the direct evidence of the involvement of the particular accused.

[4] In returning their verdict on each of the charges the jury made substantial deletions from the loci libelled so that the convictions were confined to a limited number of loci in Aberdeen, albeit they did not delete reference to "and elsewhere in the United Kingdom".

[5] In our opinion the sentencing judge erred in his estimation of the extent of involvement on the part of the appellant. It was explained to us that he had been detained on 4 January 2010 and had been in custody since. There was thus plainly no involvement between that date and 3 February, the final date of the libel. It was further explained to us that the sentencing judge's understanding that the appellant, like his co-accused, originated from the Midlands was wrong. He moved in 1999 from Colchester to Aberdeen and since then had lived in Aberdeen, apart from a period between 2003 and 2005 when he had returned to Colchester. The first evidence in the case implicating the appellant related to November 2010 when his girlfriend was suspicious about the source of a large wad of cash he had. The other evidence implicating him related to two dates in November and one in December. He was recorded by CCTV cameras within bank premises on 24 November 2009 depositing £1,300 in cash to the credit of an account in Birmingham in the name "Anthony Martens", in whose name a deposit of £1,220 cash had been made into the same account the day before. On 30 December 2009 diamorphine worth about £25,380 and crack cocaine worth about £38,500, along with £850 cash and drug related paraphernalia, were found at Castle Terrace, Aberdeen, in association with drug-stained wrapping on the knot of which was found the appellant's DNA. His fingerprints were also found where the drugs were concealed.

[7] The sentencing judge in his report also identified as evidence implicating the appellant the fact that on 30 December 2009, as he was being detained, he received a telephone call from a co-accused Dean Slater, as well as other unspecified evidence of association between the appellant and Slater who had pled guilty to being concerned in the supply of controlled drugs in Aberdeen and elsewhere in the United Kingdom on two dates. One of these dates was 30 December which we have dealt with above. The other was 29 October 2009 when Slater had assisted another convicted drug dealer in the cutting up of cocaine and heroin with a potential value of about £82,000 at Merkland Road, Aberdeen. However, in returning their verdicts on the two charges against the appellant, the jury deleted reference to Merkland Road.

[8] Against that background it is plain that the sentencing judge, attributed greater responsibility to the appellant than was appropriate.

[9] So far as the personal circumstances of the appellant are concerned, Miss Mitchell stressed the minor nature of the appellant's record and his involvement in higher education at the time of his detention and in the course of serving his sentence so far. He had not previously served a custodial sentence. In custody he has managed to gain entry to an Open University business studies course which should lead to a university degree. While the sentencing judge was not aware of that last development, it is clear from his report that he took account of the whole personal circumstances of the appellant, including his involvement in a degree course at Aberdeen University at the time of his detention, and could be faulted in relation to the attention he gave to the personal circumstances of the appellant.

[11] However we were persuaded that, had the sentencing judge confined his assessment of the criminal responsibility of the appellant to the evidence which did implicate him and the appropriate inferences to be drawn therefrom, he would not have imposed such a lengthy sentence of imprisonment. We accordingly quashed the sentences of 9 years imprisonment and imposed in their place concurrent sentences of 7 years.