APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal Nos: C233/97
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTES OF APPEAL AGAINST SENTENCE
RODERICK McLEAN, Senior
GARY JOHN HUNTER
HER MAJESTY'S ADVOCATE
Appellants: Murray, Q.C., Jackson, Q.C.; Gordon McBain & Co., Jackson & Co.
Respondent: Bell, Q.C., A.D.; Crown Agent
20 May 1999
In November 1996 the appellants went on trial with a number of co-accused in the High Court at Dunfermline. The appellant Roderick McLean, Senior, to whom we will refer as "McLean", pled guilty at the end of the evidence to charge 1 in its first alternative, which was a charge of contravening section 170(2)(b) of the Customs & Excise Management Act 1979, by reason of his attempted fraudulent evasion of the prohibition in force with respect to the importation of cannabis resin into the United Kingdom. He also pled guilty to charge 2, which was a charge of attempting to defeat the ends of justice. He was sentenced to 14 years imprisonment on each of these charges, to run consecutively. The jury found the appellant Hunter guilty of charge 1 and, subject to the deletion of head (d), charge 2. He was sentenced to 12 years imprisonment on each of these charges, to run consecutively. On 11 December 1998 his appeal against conviction was refused. We are now concerned with the appellants' appeals against sentence.
The general circumstances of the first charge are set out in the opinion of this court dated 11 December 1998. The Crown case was that arrangements were made and carried out for the transfer of a large quantity of cannabis resin in the North Sea on to a vessel, the Ocean Jubilee, which was crewed by these appellants, from another vessel which had set out from Cadiz. Each of these appellants had visited Seville in May 1996 in connection with these arrangements. On 12 June 1996 McLean purchased the Ocean Jubilee in Milford Haven. Hunter was on the vessel at the time. He and McLean sailed the vessel to Ullapool and then on to Scrabster a few days later. While the vessel was lying at Scrabster McLean apparently obtained co-ordinates of the meeting point in the North Sea and made arrangements to obtain the use of a shed in Kirkcaldy where the cannabis could be stored. On 23 July 1996 he and Hunter returned to Scrabster. Two days later they sailed out into the North Sea on the Ocean Jubilee, apparently to the intended rendezvous, in what the Crown referred to as the practice run. Thereafter McLean and Hunter returned to Edinburgh. On 28 July 1996 they returned north again, initially to Inverness and then to Wick where charts, bottles, a hose and white spirit were seen to be loaded on to the Ocean Jubilee. Later that day the vessel sailed from Wick with McLean and Hunter on board. The Crown maintained that in the early hours of 29 July the two vessels came together and the transfer took place. Later in the afternoon of that day the Ocean Jubilee was boarded by officers of H.M. Customs & Excise in United Kingdom territorial waters. The vessel was brought back to the Scottish mainland. The Crown maintained that it had been intended that the Ocean Jubilee would put into Inverness with the cargo of cannabis resin and that it would be unloaded into a van which a co-accused had driven there. The cargo would then be taken to the shed at Kirkcaldy, and another co-accused would drive some or all of the cannabis to London. According to the report of the trial judge the cannabis resin which was found on the Ocean Jubilee was some three tonnes in weight, with a value of over £10m.
Charge 2 proceeded on a recital that the accused knew that officers of H.M. Customs & Excise or other officers of law might seek to intercept the Ocean Jubilee and prevent the importation of the cannabis resin. The accused were charged with the following acts:
"You did (a) on 28 July 1996 at Wick obtain a quantity of petrol, white spirit and other flammable substances together with a number of bottles or other containers; (b) on 28 or 29 July 1996 on the North Sea between Wick and a point at map reference no. 5901.3° north 0051.3° west on board said Ocean Jubilee place bottles or other containers with said flammable substances among the bales of cannabis resin which you GARY JOHN HUNTER and RODERICK MCLEAN, Senior had obtained; (c) on 29 July 1996 on the North Sea between Wick and a point at map reference no. 5901.3° north 0051.3° west having become aware that Officers of Her Majesty's Customs & Excise were proceeding to intercept and detain the said vessel Ocean Jubilee and its cargo, did set fire to said bales of cannabis resin prior to Officers of Her Majesty's Customs & Excise boarding the said Ocean Jubilee and the fire took effect on said bales of cannabis resin and on the said bottles containing petrol or other flammable substance whereby the said bales of cannabis resin and the said Ocean Jubilee were damaged and Officers of Her Majesty's Customs & Excise, namely Alistair Soutar (now deceased) John Rough, Lee Anthony Townsend, Terence Stephen Osborne and Christopher Terence Mace were placed in danger of their lives; and (d) on 29 July 1996 on the North Sea between Wick and a point at map reference no. 5901.3° north 0051.3° west you did place the throttle of said vessel Ocean Jubilee in a forward position and then abandon the wheelhouse of said Ocean Jubilee whereby said Ocean Jubilee proceeded at a speed of 7 or 8 knots veering to port thus further placing said Officers of Her Majesty's Customs & Excise in danger of their lives and preventing them from safely evacuating to another vessel and you RODERICK McLEAN, Senior did falsely state to said Officers of Her Majesty's Customs & Excise that said throttle had jammed, the truth being as you well knew and as you RODERICK McLEAN, Senior later demonstrated that said throttle had not jammed and all this you did with intent to ensure the said Ocean Jubilee and its aforementioned cargo of cannabis resin would be destroyed by fire thus preventing Officers of Her Majesty's Customs & Excise from lawfully seizing said Ocean Jubilee and its cargo of cannabis resin as evidence, all with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice".
According to the information which we were given by counsel for the appellants, a Customs & Excise cutter came in sight of the Ocean Jubilee in United Kingdom territorial waters. The cutter closed in, and an inflatable craft carrying boarding officers was launched. As the craft was approaching the Ocean Jubilee, the latter vessel was set on fire by means of the accelerants referred to in the charge. The officers boarded the Ocean Jubilee. The throttle had been placed in a forward position and the vessel was proceeding forwards and in a circle. At some point Hunter fell off the Ocean Jubilee into the sea. The inflatable craft then left the Ocean Jubilee to pick him up. At that stage the master of the cutter turned her in order to come alongside the Ocean Jubilee, with the intention of taking his men off that vessel. This movement of the cutter came as a surprise to Mr. Townsend who was one of the officers who had boarded the Ocean Jubilee. Another of these officers, Alistair Soutar, the deceased, was on one side of that vessel, sitting against the deckhouse. He was not a seaman but a regular Customs & Excise officer. As a result of the movement of the cutter the starboard side of her bow overrode and came into contact with the Ocean Jubilee, striking the deceased. This was opposite a point on the cutter which, from the point of view of the then position of the master, was a blind spot. We were provided with an opportunity to view video film of some of these events, which plainly occurred in heavy seas.
For the appellant McLean Mr. Murray submitted that the two sentences of 14 years imposed on his client were excessive, both individually and cumulatively. He took no objection to the fact that they were made consecutive with each other.
As regards the first charge, Mr. Murray accepted that McLean was the organiser of the British end of the enterprise. However, there was always a person beyond him and in the background, outside the jurisdiction. He was referred to in the trial as "Alf". McLean was far from being the instigator of the offence or a principal. The Crown had accepted that he was not "at the top of the pyramid". He was an organiser putting into effect the planning of others. He engaged in this offence at a time when he was in financial difficulties and vulnerable, as a result of a series of misadventures. He had been trying to run a vessel in South Africa, and was being threatened in connection with money which he owed. He agreed to take the sum of £200,000 in return for running a cargo of cannabis to Scotland. The trial judge had imposed the maximum sentence which it was open to him to impose in regard to this charge.
As regards the second charge, the same general considerations also applied. Mr. Murray pointed out that in sentencing McLean the trial judge expressed the view that his culpability on this charge was no less than on the first charge, and so he imposed the same period of imprisonment. Mr. Murray disputed the soundness of this view. Earlier in his remarks the trial judge observed setting fire to cannabis resin would endanger not only the vessel but also McLean's own life and the lives of officers attempting to seize the vessel and its cargo. He continued:
"Nevertheless you put this deadly plan into operation endangering the lives of a number of officers of Her Majesty's Customs & Excise bravely doing their duty and, indeed, causing the death of one such gallant officer. Had you been, as your counsel envisaged, charged and convicted of his homicide, I would have had no hesitation in sentencing you to life imprisonment".
Mr. Murray did not dispute that head (c) of the charge was concerned with danger to lives arising directly out of the fire or any action which was a reasonable and foreseeable consequence of that fire. However, in the present case, no doubt for good reason, the Crown had not chosen to charge the accused with culpable homicide. Mr. Murray said that in these circumstances it was improper for the trial judge to treat McLean as if he had been responsible for causing the death of the Customs & Excise officer.
In presenting these submissions Mr. Murray made it clear that at the same time he fully accepted that the charges were of a very grave nature. He reminded us that McLean was 53 years of age and a first offender. The social enquiry report on him showed that he had been previously a hard working and a prosperous member of society. The effect of his involvement in these offences had been to ruin him both financially and in respect of his family life.
Mr. Murray also pointed out that the trial judge had been informed that prior to the leading of any evidence McLean had endeavoured to plead guilty to the two charges. However, the Advocate depute had been unwilling to accept these pleas in the absence of pleas of guilty from other accused. Accordingly the trial proceeded. He had informed the Advocate depute that his only concern was with the way in which the cutter came together with the Ocean Jubilee. He had, in effect, assisted the prosecutor by repeatedly indicating that identification was not in dispute and that there was no objection to his leading in any matter concerning his client. In addressing the trial judge in mitigation of sentence he drew these matters to his attention. He informed him that both parties had considered that it was appropriate that McLean's pleas of guilty should be tendered at the close of all the evidence. McLean had shown remorse in his actions and in his instructions as to the conduct of his defence. Mr. Murray pointed out that in his report the trial judge stated that he had given consideration to the mitigating factors but had not considered that they merited any reduction in the statutory maximum sentence on charge 1. Mr. Murray observed that it was difficult to understand this, standing the fact that the trial judge had castigated other accused for having lied in the witness box.
For the appellant Hunter, Mr. Jackson adopted a similar approach in regard to the sentences imposed on his client, both individually and taken together.
As regards the first charge, he submitted that to some extent his interests coincided with those of McLean, for whom 14 years was an excessive sentence. He referred us to a number of instances in which sentences had been imposed in comparable cases in recent years, and informed us that Brian Silverman, a co-accused in the present case whom the trial judge had regarded as being a "major player" and in charge of the London side of the operation, had received a sentence of 10 years following his conviction after a re-trial. In addition Hunter, he said, did not have the same level of involvement as McLean. He was not a "player". There should have been a very significant difference between the sentences imposed on them. He had no criminal background. McLean had recruited him for his technical expertise. There was nothing to show that he had been part of any criminal fraternity. He had received some training and had worked for Ferrantis. He had interests in diving but this had not provided him with enough work all round the year. He had started a diving business which was based in Leeds. He had worked for McLean for some time. When McLean was purchasing the Ocean Jubilee in Milford Haven, Hunter was engrossed in the engine room and was too busy to become involved in the discussions of the deal by which the vessel was acquired. Although there was extensive evidence at the trial about telephone calls, none of them involved him. There was evidence that he was seen with McLean, but no evidence that he was seen on his own. While the vessel lay at Scrabster for some three weeks, he was in Leeds getting on with his normal business.
As regards the second charge, Mr. Jackson submitted that the fact that in convicting Hunter the jury had deleted head (d) was a significant matter in regard to any danger to the lives of others. Mr. Jackson also supported Mr. Murray's criticism of the trial judge's references to the causation of the death of the Customs & Excise officer. He observed that if the Crown had considered that the accused were responsible for causing the cutter to come into contact with the Ocean Jubilee, they would have charged them with culpable homicide. He pointed out that when the boarding of another vessel was carried out, it was always the practice for this to be done by means of use of an inflatable craft. Mr. Jackson also reminded us that in sentencing Hunter the trial judge said to him that much of what he had said to McLean about this charge applied to him also. He added: "Throughout your evidence, you displayed a purely callous attitude to the Officers of Customs & Excise, some of whom risked their lives in saving yours". Mr. Jackson said that this reference to a callous attitude was incomprehensible. The same could be said of a passage in the trial judge's report in regard to Hunter in which he said:
"But for his selfish action in trying to desert the burning vessel, the Customs cutter would not have required to approach the Ocean Jubilee and the Customs Officer would not have lost his life".
The reality, said Mr. Jackson, was that it was inconceivable that Hunter would have voluntarily gone into the sea, or have set fire to the cargo with a view to doing so. He had no life jacket. It was a miracle that he survived. He had been directed to get off the vessel, put his foot down, and fallen. At the trial no one accused him of deserting the vessel, let alone causing the death of the officer. He had expressed his sorrow and regret at what had happened.
Mr. Jackson also informed us that he had no previous convictions. He was married, and had a handicapped child who lived at a residential establishment in Glasgow. A second child had been born at or about the time of the trial. Letters from his prison showed that he had adopted a positive attitude, and a mature and diligent approach to his circumstances.
In the light of these submissions we deal first with the appellant McLean. In considering the sentence which he should impose on him in regard to the first charge, the trial judge was well entitled to take the view that the magnitude and elaborate nature of the enterprise for the illegal importation of a very large quantity of cannabis resin called for a very substantial sentence. In the case of McLean he had before him the man who was the organiser of the British end of the enterprise. However, McLean was a first offender who had hitherto pursued a legitimate working life. He had offered to plead guilty at the outset. During the trial he had not contested, but had assisted in the leading of, evidence which brought out his role in setting the full picture before the jury. These considerations were of distinct significance, but the trial judge appears to have attached no importance to them. Having regard to the whole circumstances and arguments put before us we are satisfied that the sentence which he imposed on McLean on this charge was excessive.
As regards the second charge, we find the trial judge's reference to the causation of the death of the Customs & Excise officer disturbing. We have come to the conclusion that he misdirected himself in this respect, and on that basis we propose to consider the appropriate sentence for that charge de novo. There is no doubt that there was a contingency plan for setting fire to the cargo of the cannabis resin which was hatched on the mainland, and that suitable accelerants were put on board for this purpose. To set fire to a cargo on the high seas plainly carries with it a special degree of danger to the lives of those who may become involved. McLean compounded the danger by setting the throttle of the vessel in the way in which he did.
In considering what sentences to impose on these charges, we have in mind not only the individual sentences but also their combined effect. The suitability of disposal by way of consecutive sentences is not in question. We will quash the sentences imposed on McLean by the trial judge and substitute 12 years imprisonment on charge 1 and 9 years on charge 2, to be served consecutively, making a total of 21 years, which will be dated, as before, from 29 July 1996.
We turn then to the appellant Hunter. The remarks which we have made as to the magnitude and elaborate nature of the enterprise apply here also. He was active from an early stage, so far as the evidence discloses. However, he was not in any sense an organiser, but a technical assistant to McLean. In convicting him the jury were plainly satisfied that he was aware from the outset of the nature of the enterprise in which he was playing his part. As regards the second charge, so far as it concerned him, we take note of the fact that in his case the jury excluded head (d) in convicting him. In this case also we are satisfied that the trial judge misdirected himself, not only by inference from remarks which he addressed to McLean, but also from those which he directed to Hunter himself. We will accordingly consider what was the appropriate sentence for this charge de novo.
Having regard to the circumstances put before us and the submissions which we have heard, we will quash the sentences imposed on Hunter by the trial judge and substitute a sentence of 10 years imprisonment in respect of charge 1 and 7 years imprisonment on charge 2, to be served consecutively, making a total of 17 years, dated, as before, from 29 July 1996.