APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Drummond Young Lord Philip	[2013] HCJAC 144 XC147/13   OPINION OF THE COURT   delivered by LORD DRUMMOND YOUNG   in   APPEAL AGAINST SENTENCE   by   ARBEN DUMANI   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

 

Appellant: Jackson, QC, McElroy; Paterson Bell, Edinburgh

Respondent: Small; Crown Agent

 

16 October 2013

 

[1] On 5 February 2013 the appellant was convicted at Glasgow High Court of a charge that between 3 May and 13 May 2012 at certain addresses principally in Glasgow he was concerned in the supplying of cocaine, a Class A drug, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Two other accused pled guilty at the end of the Crown case, another co-accused was acquitted and a further co-accused was convicted of a restricted charge. The appellant was sentenced on 5 March 2013, when the trial judge sentenced him to 12 years' imprisonment. The most comparable co-accused, Memia, was sentenced to 10 years' imprisonment, which was reduced from 12 years to take account of his plea of guilty.

[2] It is, we think, of significance that the appellant and Memia were the subject of an extensive surveillance operation undertaken by the Scottish Drugs Enforcement Agency. Detailed evidence of this was led at the trial. Both the appellant and Memia were seen at premises in Milnpark Street, Glasgow on a number of occasions, when they arrived in cars in the street outside the premises. Both, together with a third man who was not identified, went to the boot of one car from which they retrieved a variety of large and heavy objects. These were manhandled into the common close and thereafter, by inference, into one of the flats. These appear to have been the component parts of an industrial press that was used for producing blocks of adulterated cocaine. Thereafter, until their detention on 30 May 2012, the appellant and Memia were seen to visit the premises regularly, sometimes alone and sometimes together. We note that the appellant was seen, on occasions, to visit the premises alone. Bags were carried in and out, the inference being that these contained deliveries of drugs or adulterant. The appellant's evidence was that although he had visited the premises he had never been in the flat but simply sat in the doorway of the common close waiting for Memia. The trial judge notes that that account was rejected by the jury. On 30 May the police secretly entered the flat, removed the drugs and planted a hidden camera. Memia discovered that the drugs were missing and telephoned the appellant, who at the time was travelling towards the flat. The appellant was then stopped by police officers and detained, and was subsequently charged with being concerned in the drug supply operation being carried on in the flat. It thus appears from the events on 30 May that, when Memia discovered what had happened, the appellant was the person that he got in touch with.

[3] Inside the flat a sophisticated drug supply operation was found with a press designed to make up kilo consignments of cocaine for onward transmission. This involved the adulteration of the relatively pure cocaine that arrived in the United  Kingdom. Sophisticated equipment was involved including a device for producing pellets of drugs - a type of device that had not previously been found in Scotland. The trial judge notes that in the experience of the officers involved this was perhaps the largest cocaine processing operation ever encountered in Scotland. The total street value of the drugs recovered exceeded £1.2 million according to the police witnesses. A contrary view was suggested by Mr William Percy, a consultant and retired police officer, who thought the absolute maximum hypothetical yield of the drugs would be £600,000, not the higher figure of £1.2 million contended for by the Crown.

[4] It seems to us that, while the difference between those figures is on its face large, in sentencing terms it does not make a great deal of difference. The amount of drugs recovered on any one day can vary according to the way that deliveries have come in and been processed, and it is clear that the quantity of drugs involved was very large by usual standards. The evidence disclosed that test packages were found on two of the accused which were of a higher purity than would be supplied in bulk; these were regarded by the drugs experts as samples for prospective buyers. The trial judge drew the inference that the operation was accordingly very large and very sophisticated and it was clearly intended that it should operate in the long term.

[5] A further piece of evidence noted was that shortly after the appellant's detention police searched his house and, while they were doing so, the doorbell rang and was answered by police. On the doorstep was a man carrying a suitcase which contained cocaine to the value of £235,000 and 10 kilograms of a well-recognised adulterant.

[6] In the light of that evidence, it appears to us that there was ample evidence for inferring that the appellant was heavily concerned in the drug supply operation. For the appellant, counsel submitted that his role was less than that of Memia, and the trial judge had been in error in treating the two as effectively equivalent. After allowing for discount, he gave exactly the same sentence to both men. It was submitted that the appellant's role was essentially as someone who fetched and carried for Memia and that Memia was the man who ran the operation. In favour of such a view is the fact that the flat was in Memia's name. Therefore, it would seem that his role was somewhat greater than the appellant's. Nevertheless, we note that both the appellant and Memia had unrestricted access to the flat and the appellant clearly played an important and trusted part in the drug processing and supply operation that was being carried on there.

[7] Counsel for the appellant also referred to statements that were available from Memia and another of the co-accused whose involvement was, admittedly, merely as a courier. These suggested that Memia was the person in charge and that the appellant was merely employed as a driver. We think that these statements are of no assistance; they were not tested in any way and the persons responsible for them are, of course, at this stage, convicted criminals. We prefer to proceed on the basis of the police surveillance operation, which indicated that the appellant was going to and from the flat on a regular basis with unrestricted access.

[8] We were referred to past cases in this area, particularly the case of HM Advocate v Little 2012 HCJAC 72. That was a Crown appeal against sentence for an individual who stored large amounts of cocaine and cannabis in a rented industrial unit. In that case, the sentence originally imposed was a headline sentence of 5 years for being concerned in the supplying of cocaine. That was increased to a headline sentence of 8 years, which was discounted to 6 years on account of a guilty plea. It is the sentence of 8 years that is relevant for present purposes. It seems that in that case the appellant's involvement was providing safe premises. The amounts involved were large but his role was, to that extent, largely passive. In the present case, by contrast, what was involved was an active processing plant, and it seems clear from the evidence that the appellant was actively involved in the movements to and from the processing establishment.

[9] In these circumstances, we think that the appellant's involvement can be distinguished from that of the appellant in HM Advocate v Little. Nevertheless, the figure of 8 years there is perhaps a pointer to what might be involved here. We accept that Memia was the person in whose name title to the house was taken. We think that that must be recognized to some extent and for that reason we are of opinion that the appellant should not have been treated in exactly the same way as Memia. Memia received a headline sentence of 12 years. We consider that there should be a slight reduction in respect of the appellant's involvement, and we consider that in his case, taking account of the extensive movements that he was making to and from the house, the appropriate sentence should be 10 years. We will accordingly quash the original sentence of 12 years' imprisonment and reduce that to 10 years' imprisonment.

 

 

SM