APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal Nos: C/387/99
OPINION OF THE COURT
delivered by LORD McCLUSKEY
(1) KAY LOUISE KELLY, (2) JAMES DOUGLAS REID, (3) DAVID PATTERSON STEWART, (4) ROBERT LAMONT and (5) MARK ANDREW ALLISON
HER MAJESTY'S ADVOCATE
Appellant: Shead, Scott, Alonsi, Duguid, Richards; Macbeth Currie & Co, Anderson Strathern, Fyfe Ireland, Erskine MacAskill, Fairbairns
Respondent: Jandoo, A.D., Crown Agent
11 May 1999
On 18 January 1999 at a sitting of the High Court of Justiciary at Glasgow all five appellants appeared on an indictment containing various charges under the Misuse of Drugs Act 1971. Each appellant pled guilty to one or more charges, subject to amendments and deletions, and the pleas so tendered were accepted. The case was continued until 8 February 1999 in order that reports on certain of the appellants might be obtained.
The trial judge tells us that the background to the indictment was a decision by the police to mount a special operation to combat an apparent increase in the use of illegal drugs in Stranraer. Among other things, this involved the employment of undercover police officers. By the latter stages, the operation involved three such officers using the names "Steve", "Craig" and "Dillon". Steve and Craig took lodgings in Stranraer and frequented licensed premises, making contact with people who offered to supply them with drugs and who actually did so. Having made initial contact with persons dealing at street level, the undercover officers made it known that they would be interested in transacting in larger quantities of drugs. As a result, in November 1997, they made contact with the appellant Lamont and, through him, with the appellant Allison. The details of the activities of each appellant appear sufficiently from what follows.
KAY LOUISE KELLY
This appellant pled guilty to charge 10 on the indictment, which alleged that she was concerned in the supplying of a controlled drug, namely diamorphine, a class A drug, on two days, namely 12 and 13 November 1998. The police acting on information received stopped a motor car being driven by the appellant Lamont on the Cairnryan road near Stranraer on 13 November 1998. The appellant, a passenger in the car, had concealed two tinfoil wraps containing small quantities of diamorphine within her body and also a condom containing over 83 grms. of diamorphine in four individual wraps. She and Lamont had gone to Liverpool for the purpose of collecting the heroin and bringing it back to Stranraer. In a police interview she said that she was to be rewarded by receiving the two tinfoil wraps for personal use. At a later point in her interview, two further packages containing heroin were obtained from within her body. The total street value of the heroin so recovered was about £25,000 (Lamont also had some heroin - as noted later). In mitigation, it was explained on behalf of the appellant that until February 1998 she had not been involved in drugs but after being absent from her work through illness she did become involved through friends and quickly became addicted to heroin. In June 1998 she consulted her doctor, Dr. Beattie, concerning her drug addiction and sought and obtained treatment, which, however, was not successful. She was apparently consuming heroin worth about £40 to £50 per day by about the time when the offences were committed. The sentencing judge concluded that the appellant was guilty of committing a serious offence having regard to the character and quantity of the drugs in her possession. He had had regard to all the matters placed before him, and which are the same matters now advanced on behalf of this appellant in the appeal. He imposed a sentence of 4 years' imprisonment. In advancing the appeal, counsel repeated that the appellant had instructed a plea of guilty at the earliest opportunity and that she had also volunteered to co-operate to assist the authorities in relation to other offences in respect of which she had some information. It was pointed out that she was a first offender and had been drawn in to commercial dealing in drugs through her addiction. It was submitted that the sentencing judge had given inadequate weight to these considerations.
Nothing said on behalf of the appellant persuades us that there has been a miscarriage of justice. The courts have repeatedly made it plain that, even for first offenders, a serious view has to be taken in respect of commercial dealing in class A drugs. The personal circumstances of this appellant are in no way so special that the normal practice should be departed from. Having regard to the practice of the courts in such cases, we see no reason to interfere with the length of sentence imposed. This appeal is, therefore, refused.
JAMES DOUGLAS REID
This appellant tendered pleas of guilty to charges 2 and 4 on the indictment subject to amendments as particularised in the sentencing judge's report. Charge 4 was one of being concerned in the supplying of cocaine between 24 October 1997 and 5 November 1997 in premises specified in the indictment in Stranraer. Charge 2 was one of being concerned in the supplying of amphetamine, a class B drug, between 17 August 1997 and 17 November 1997 at premises in Stranraer and elsewhere in Scotland. The cocaine was said to have a maximum street value of £900. The amphetamine had a street value of the order of £2,000. It was accepted that this appellant was involved in the commercial supplying of drugs. It appears from the narrative contained in the sentencing judge's report that two of the undercover police officers, Steve and Craig, were in the Bar Pazzerello on 23 October 1997 when they were approached by Reid with an offer to obtain drugs. Craig specified "coke" and some time later the appellant provided Craig with .7 grms. of powder containing cocaine in exchange for £60. That initial contact and supply having been made, the appellant in subsequent days supplied Steve and Craig with four further quantities of cocaine. Although the street value of the cocaine was said to be of the order of £900, the police officers only paid about a third of that price. On two of the occasions when drugs were supplied to Craig, the appellant was assisted by the co-accused David Patterson Stewart. After this appellant was detained he admitted he had been supplying amphetamine to the extent of "a couple of ounces per week" during the preceding three months. Both to the sentencing judge and to this court it was submitted that this appellant had a minor role as a street dealer. He had received very modest payments for his dealing, which was mostly just selling on to friends. This appellant was aged 19 at the time. He had no previous convictions. He had co-operated with the police. It was submitted that he had co-operated well with a probation and a community service order in respect of other matters and was showing a willingness to turn away from being involved in drugs. It was said that he was genuinely remorseful and, in that connection, reference was made to the Social Enquiry Report. Counsel did not submit that it was inappropriate to impose a custodial sentence upon this appellant but urged the court to take the view that the period of four years imposed was excessive.
We are satisfied that, in the absence of quite compelling personal circumstances, the court had little option but to impose a substantial custodial sentence. Having regard to the periods involved, and having regard to the character of the class A drug we are not persuaded that the sentencing judge has erred by imposing the sentence which he has chosen, of four years' detention. This appeal is therefore refused.
DAVID PATTERSON STEWART
This appellant pled guilty to charge 4 in the indictment, subject to certain amendments. The sentencing judge throughout his report makes it plain that he proceeded upon the basis that this appellant's involvement was confined to supplying cocaine twice to Craig at the Old Creamery car park on two dates within the period of 24 October to 5 November 1997. In narrating the terms of the charge as amended the learned sentencing judge failed to record that references therein to the Bar Pazzerello, The Venue Night Club and elsewhere in Scotland had been deleted from the charge to which the appellant pled; but we are satisfied that that was simply a clerical error which did not affect the judge's consideration of the matter. The narrative in this instance was that Steve and Craig, having made contact with James Douglas Reid as earlier narrated, then met Reid in a car in the company of the appellant. The appellant told them he had cocaine and he produced a medicine bag containing six small bags of powder similar to the material supplied earlier to the undercover police officers by Craig at The Venue. Craig bought two bags for £120 and paid in cash, which the appellant added to cash already lying in the glove compartment of the car. The second such sale took place also in the presence of Reid in a car at the same car park on 5 November 1997 when two bags of cocaine of relatively high purity were sold to the undercover officers. The total value of the cocaine supplied by the appellant was said by the Advocate depute to be £640.
In submissions for the appellant it was argued that he was plainly involved only on the periphery. He was a person with a good work record and a stable background. The Social Enquiry Report was in favourable terms and indicated that he had undergone a substantial change in his attitude. He had tendered an early plea and, in the circumstances, and having regard to his youth - he was 19 at the time - the sentence imposed was excessive. Indeed it was submitted that a custodial sentence was not required.
In this instance also we consider that the sentencing judge followed the normal practice of the court in relation to such cases. The essential fact of the matter is that this man willingly engaged in commercial dealing in a class A drug in the manner described. The sentencing judge was bound to regard this as a case in which custody was appropriate. We see no reason to conclude that his choice of the period of three years' detention was vitiated in any way whether by misdirection or by comparing this appellant with any of the others.
This appellant pled guilty to charges 1 and 10, subject to various amendments. The terms of the amended charges are narrated by the sentencing judge in his report to this court. The plea in respect of charge 1 was to the effect that over a period of 101/2 months ending on 17 November 1997 at various places in and around Stranraer the appellant was concerned in the supplying of diamorphine, a class A drug, to others, and in particular to the three undercover police officers known as Steve, Craig and Dillon. Charge 10 alleged a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 by being concerned in the supply of diamorphine over the two day period 12 and 13 November 1998. This charge relates to the incident in which Kay Louise Kelly was involved. The sentencing judge tells us that this incident, which occurred almost one year after the end of the period referred to in charge 1, came about because this appellant invited Kay Louise Kelly to accompany him to Liverpool in order to transport back to Stranraer a quantity of heroin. The total street value of what was involved was some £31,000. Thus - in addition to the £25,000 worth which Miss Kelly had concealed in her body - a quantity of 41.03 grms. of powder, containing heroin with a street value of £6,500, was retrieved, following hospital X-rays, from the anal passage of the appellant. The drugs were contained in a condom. In relation to charge No. 1, we refer to the full account which appears in the report by the trial judge. It appears that after making their earlier contacts with dealers who were operating at street level the two undercover officers, Steve and Craig, made it known that they might be interested in transacting in larger quantities of drugs. Following that expression of interest they were introduced to this appellant, Robert Lamont. Representations were made by Craig that their principal might be interested in regular dealings but that he would need to meet this appellant's boss. The sentencing judge's report continues:
"A meeting was therefore arranged between the two superiors. That meeting took place on 15 November 1997 and was attended by Lamont, his co-accused Allison, Steve, Craig and the third undercover officer, Dillon. At that meeting Lamont said amongst other things that he could get his hands on any amount, and various representations were made by Allison and the appellant Lamont as to what might be obtained. The indications given were that the profits were divided equally between Lamont and Allison. The upshot of that meeting was that Allison agreed to supply 11/2 kgs. of heroin to Dillon. It appears that initially there was not complete understanding. Dillon asked that 0.5 kg. be made available straight away 'on bail' [apparently meaning on credit]. The appellant Lamont then went to Glasgow in order to obtain the 0.5 kg., but on his return it became apparent that Allison had not understood the intention that the 0.5 kg. should be "on bail". The continued meeting of 15 November concluded with an agreement that Dillon should receive one ounce of powder on credit and that the parties should meet thereafter on 17 November at the Eynhallow Hotel in order to complete the transaction.
On 17 November 1997 the three undercover officers met with the appellant Lamont and his co-accused Allison at the Eynhallow Hotel. The co-accused Allison stated that they had a half kilogram of heroin some miles away. Consequently Steve and Lamont drove to a destination indicated by the appellant [Lamont], where Lamont left the vehicle and returned with a package in a sock. They then returned to the Eynhallow Hotel car park, where they met with the co-accused Allison and Dillon. Proceedings for the due settlement of the illegal transaction took place in the sense that Steve and the appellant Lamont went to one vehicle in order to weigh the heroin and Allison and Craig went to another in order to check the amount of the money.
At that point, by a pre-arranged signal, the police intervened and all were detained. The quantity of powder in question was one-half a kilogram".
On behalf of this appellant, counsel referred to the circumstances of the appellant, as narrated to the sentencing judge. It is unnecessary to repeat them here. There is nothing exceptional about the appellant's involvement in drug dealing. It was accepted by counsel for this appellant that he was not himself addicted to drugs. He became involved with drugs because of financial necessity. His financial circumstances had deteriorated after he had been made redundant in 1996 and had had problems with a building society loan. It was submitted that this appellant's role was simply as a courier and as a "run-around" for Allison. It was submitted that the court should compare the sentence imposed upon this appellant with that of 12 years imposed upon Allison who was the real principal. It was submitted that if that comparison were properly made it would be seen that comparative justice required that the court conclude that the sentence of ten years imposed upon this appellant was excessive.
In our opinion, the sentencing judge was well-entitled to take the view which he did take and has explained in his report, that the appellant was a very willing participant in the dealing of drugs to a substantial extent and for financial return. Given the whole circumstances we are satisfied that the sentence imposed was well within the range of sentences open to a judge dealing with a substantial commercial dealer in class A drugs.
MARK ANDREW ALLISON
This appellant was convicted on charge 1, as amended. As amended it alleged a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 for a period between 26 October 1996 and 17 November 1997, both dates inclusive at the Eynhallow Hotel, Castle Kennedy, near Stranraer, at the Harbour Inn, Portpatrick, in Glasgow and elsewhere in Scotland. The general background to the matter has already been referred to in dealing with the circumstances of other appellants, notably Robert Lamont. The trial judge tells us that counsel for this appellant explained in mitigation that, as the appellant had told the undercover police, he "no longer did drugs 'hands-on'". He had introduced Lamont to people in Glasgow who could supply heroin to Lamont and his profit from each kilogram of heroin so supplied was about £1,000. Allison apparently agreed to guarantee payment. Counsel submitted that Allison was "a braggart" and that both he and Lamont wanted to "act big" in front of the three undercover officers and that their boasts of supplying heroin all over Scotland were simply boasts.
The sentencing judge tells us that on the information placed before him it was evident that this appellant (Allison) was involved in drug dealing at a higher level in the chain of distribution than any other of the co-accused. He says
"He was engaged in financing the distribution of drugs and profiting therefrom without actually engaging in the physical handling of the commodity itself. He was plainly undertaking what might be termed wholesale transactions. I accepted that many of his remarks to the police officers involved an element of boasting, but it was nonetheless plain that he was dealing in drugs at a superior level. He had pleaded guilty to being involved in the supply of heroin for a period of rather more than one year".
The trial judge imposed a sentence of 12 years imprisonment, backdated to 18 January 1999. In presenting the appeal, Mrs. Richards who appeared for this appellant, submitted that no good reason had been shown for imposing a higher sentence upon this appellant than that imposed upon Robert Lamont. She submitted that having regard to the principle of comparative justice the sentence of 12 years imposed upon this appellant was excessive and amounted to a miscarriage of justice.
We consider that there is no substance in this appeal. The sentencing judge was well-entitled to conclude that this appellant was an important person in the drugs distribution scene in and around Stranraer and that he had been engaged in highly profitable drug dealings with a class A drug over a substantial period of time. The sentence imposed upon him is certainly within the range of sentences open to a judge who has to deal with a commercial dealer handling a class A drug over a substantial period of time. This appellant has a record of previous convictions, though they are not analogous. The sentencing judge was also entitled in the light of all the information before him to differentiate as he did between this appellant and Robert Lamont, having regard to his assessment of their different roles and positions in the drug hierarchy. This appeal is therefore refused.