Scottish High Court of Justiciary Decisons

MARK JAMES NEWMAN v. HER MAJESTY'S ADVOCATE [1999] ScotHC 141 (2nd June, 1999)

The appellant is Mark James Newman who was convicted at the High Court at Glasgow of being concerned in the supplying of cocaine to another or others at Central Station in Glasgow and elsewhere in Scotland and England between 7 and 28 May 1998 and also of attempting to pervert the course of justice by giving false particulars to the police and to the sheriff at judicial examination. He was sentenced to eight years imprisonment on charge 1 and to six months imprisonment on charge 2, the two sentences to run concurrently and both being backdated to 28 May 1998. Along with the appellant his co-accused, Ricardo Munera, was found guilty on charge 1 and in respect of that charge he was sentenced to ten years imprisonment with a recommendation for deportation.

In considering the sentence the trial judge tells us that, although the appellant had a record of convictions stretching over the period from 1989 to 1995, they were largely for road traffic offences and crimes of dishonesty and in determining the appropriate sentence the judge regarded his record as being of little significance. Mr Brown accepted that the trial judge had approached that matter in the appropriate manner.

Mr Brown also accepted that in imposing a sentence in respect of a drugs offence of this kind the learned trial judge was entitled to have regard to the need for deterrence. Nonetheless, Mr Brown submitted that when regard was had to the sentence imposed upon the co-accused, it was right on the grounds of comparative justice to reach the view that the sentence of eight years imposed upon the appellant had been excessive.

The trial judge informs us in his report that the appellant was enlisted by Munera to assist in conveying 3 kilos of fairly high purity (73%) cocaine from London to Glasgow. It appears that it was to be brought up on the train. The cocaine was likely to be further adulterated so as to produce 5,000 one gramme deals, selling for between £50 and £80 per deal, thus making a total value of between £250,000 and £400,000. When he was detained the appellant gave false particulars and adhered to that position before the sheriff.

Mr Brown argued that the narrative given by the sentencing judge showed that the appellant had been enlisted by his co-accused. In that situation it was proper to regard the co-accused as being, in effect, the senior of the two and the one who had played the larger part: indeed the trial judge had referred to him as having played the larger part when imposing sentence.

All we know from the report and from what we have been told is that Munera enlisted the appellant to accompany him on the trip by train from London to Glasgow. We were told that Mr Munera himself also came up by train. We were informed that for his part he had been enlisted by others in London. Therefore, even if we take the view that Mr Munera was, as the trial judge said, taking a larger part, we cannot say that his part was other than that of, as one might put it, the senior courier. There is no information before us to suggest otherwise.

The question then comes to be whether, looking at the matter in that way, we can say that a sentence of eight years chosen for the appellant can be regarded as excessive even by comparison with the sentence of ten years imposed on the co-accused. We have reached the view that it cannot be regarded as excessive. Even viewed in isolation the sentence appears to us to be one which the trial judge was eminently entitled to select for an offence involving such a substantial quantity of cocaine. Likewise, when we look at that particular sentence by contrast with the sentence of ten years imposed on Munera we come to the view that it cannot be regarded as excessive. For these reasons the appeal must be refused.