Scottish High Court of Justiciary Decisons

ANDREW FRASER JOHNSTONE v. HER MAJESTY'S ADVOCATE [1999] ScotHC 119 (14th May, 1999)

On 6 June 1998 the appellant was found guilty of five charges of contravening section 4(3)(b) of the Misuse of Drugs Act 1971 (being charges 1, 2, 4, 5 and 7 of the indictment) and a charge of contravening section 5(2) of the Act (charge 8). He received concurrent sentences of imprisonment in respect of each of these charges. These were seven years in respect of charges 1 and 7, which related to his being concerned in the supplying of LSD and his attempt to be concerned in the supplying of ecstasy, six years in respect of charge 5, which related to amphetamine, and three years in respect of charges 2, 4 and 8 which related to cannabis resin, temgesic and cocaine. All of the charges, apart from charge 8, related to a period between 23 May and 23 August 1997. Charge 8 related to the latter date.

As regards the circumstances of these offences, the trial judge states in his report that, acting on information received, police officers obtained a drugs search warrant and attended at the appellant's home in Fraserburgh. In the course of the search there they found a quantity of drugs of various kinds. Some were said to be for personal use only and were found inside the house. Others which were said to be of such a quantity as to be for onward supply to others were found in a container in a fertiliser bag on the garden wall, and in two containers which had been buried under some loose stones in a hangar near the house. This included the cocaine which was the subject of charge 8. In the course of the search the appellant, who had not so far been present, returned home. He was detained and taken to the police station in Fraserburgh. On the same day the police executed a search warrant in respect of another house in Fraserburgh occupied by a friend of the appellant, at which the appellant also stayed from time to time. In the course of that search the police found amphetamine and some tablets which contained no controlled drug but were of such a design and quantity as to indicate that they were to be supplied to others as containing ecstasy. Also found in a bedroom which the appellant shared with his wife at the first house was a box containing £3,000 of money. The appellant said that this represented his savings from his work as a fisherman and from other work that he did. On the other hand a defence production showed that during the year ending 5 April 1997 his earnings as a fisherman after tax amounted to only about £2,500. A number of plastic bags with traces of some substance were found in the drawer below where the money had been found. At the police station in Fraserburgh the appellant was interviewed. Initially he denied any responsibility for any of the drugs other than some cannabis resin which he said was for his own use. During the course of the search a small amount of cannabis resin had been found on his person and at the end of his first interview he was charged with being in possession of cannabis resin. Later, following further enquiries he was interviewed again, and on this occasion he appeared to accept full responsibility for all the drugs, including those which had been found at the second house.

The drugs which were found had the following values. There were 179 squares or doses of LSD with a street value of from £537 to £895. There were 162 tablets, 59 of amphetamine and 103 which contained no controlled drug but were intended for onward supply as ecstasy. These had a street value of £8-£12 per tablet, a total of between £1,296 and £1,944. At the first house there were ten bags of powder, each weighing between 26.49 and 28.57 grms., which contained amphetamine with a total approximate street value of £5,835. At the second house there were four bags of powder, each weighing between 26.97 and 27.29 grms., containing amphetamine with a total approximate street value of £2,325. The drugs which were recovered also included a total of 76 temgesic tablets with total value of £76-£228, and cannabis resin with a maximum potential street value of £1,075.50. Also found were personal quantities of cocaine with street values between £150 and £200 and £180 and £240.

Miss Scott submitted that since the evidence as to the appellant's involvement with drugs arose out of the searches which had been carried out as part of a single operation the trial judge should have imposed a cumulo sentence. On that basis she submitted that a cumulo sentence of seven years imprisonment would have been excessive. She founded on the decision in McDade v. H.M. Advocate 1997 S.C.C.R. 52, in which the court had quashed consecutive sentences imposed in respect of a contravention of section 4(3)(b) of the 1971 Act and a number of contraventions of the provisions of the Firearms Act 1968 and imposed a cumulo sentence. The effect was to reduce an overall period of 12 years imprisonment to nine years. Miss Scott accepted that the appellant had a previous conviction on 19 April 1990 on a Sheriff Court indictment for contravention of section 4(3)(a) of the 1971 Act. He received a sentence of 200 hours community service in respect of that offence along with a contravention of section 5(2) of the Act.

In his report the trial judge says that if the offences had been at common law he would probably have passed a cumulo sentence of seven years imprisonment as appropriate in this case. However, in view of the fact that the offences were statutory he considered that any sentences which he imposed would have to be concurrent. Having regard to those considerations he selected the periods of imprisonment to which we have already referred. He had not taken account of the decision in McDade. If he had done so, he would have imposed a cumulo sentence of seven years imprisonment. He would probably have imposed six years in respect of each of charges 1, 5 and 7 had it stood alone. If he had been passing a cumulo sentence in respect of only those three charges, he thought that he would still have imposed seven years imprisonment. Those three charges, in his view, were the most serious ones, and in the particular circumstances he did not think that the presence or absence of the other three charges would have affected his view of the overall sentence which was appropriate.

Whether a cumulo sentence is appropriate depends on the circumstances of a particular case. As the court observed in McDade, there are some cases in which it may be appropriate to impose a cumulo sentence despite the fact that there are separate statutory charges. In the present case the charges of contravening section 4(3)(b) of the 1971 Act, which formed the principal charges of the indictment, all related to the same period, and the guilt of the appellant in respect of those charges was brought to light as the result of a single operation for the recovery of drugs from the houses with which he had an association. In these circumstances it is clear that, prima facie a cumulo sentence was called for. A cumulo sentence, where it is appropriate, has the merit of avoiding difficulties which are inherent in the use of concurrent sentences on the one hand and consecutive sentences on the other. It enables the court to arrive at an overall result which is appropriate for the case as a whole. There may, of course, be situations in which, even if a cumulo sentence is otherwise appropriate, a different approach may have to be taken. For example, where there may be a challenge to the conviction of the accused on one charge, as opposed to others, the sentencer will require to indicate what sentence he would have imposed in regard to the others if the accused had not been convicted on the particular charge. (cf. Carringi v. H.M. Advocate 1989 S.C.C.R. 223).

In the present case we are satisfied that the appropriate course for the sentencing judge would have been to impose a cumulo sentence. The only complicating factor in this case is that the maximum sentence which could have been imposed in respect of charge 4 was five years imprisonment in respect that it related to a class C drug. It would not have been appropriate for the trial judge to have included that charge among those for which he was imposing a cumulo sentence in excess of that period of imprisonment.

Having considered the facts and circumstances of the present case we are satisfied that it would not have been excessive for the sentencing judge to impose a cumulo sentence of seven years imprisonment in respect of charges 1, 2, 5, 7 and 8, along with a concurrent sentence of three years in respect of charge 4. Accordingly we will quash the concurrent sentences which he imposed and substitute the sentences which we have indicated.