Scottish High Court of Justiciary Decisons

MARIA ANN KENNY v. HER MAJESTY'S ADVOCATE [1999] ScotHC 166 (23rd June, 1999)

This is the appeal of Maria Ann Kenny who was sentenced to four years' imprisonment on a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971.

The ground of appeal is that the sentencing Judge did not accept what was said to him in mitigation although the plea of guilty had been tendered on the basis of what was said in mitigation.

We now have before us a letter from the Crown Office indicating that the plea was tendered restricting the appellant's involvement to a single date and restricting the appellant's involvement to two particular places. The plea of guilty was accepted by the Advocate Depute on that basis. Part of the difficulty in this case is that the plea was negotiated on the first occasion when this matter appeared in Court. At that time there was no social enquiry report and the matter required to be continued. The Judge who heard it on the second occasion was not the same Judge who had heard it on the first occasion and it was a different Advocate Depute who appeared on behalf of the Crown. The Advocate Depute who appeared on the second occasion was therefore unable to confirm or deny what was said to the sentencing Judge in mitigation, the mitigation only being produced on the second occasion.

In our view, having regard to the fact that it is now quite clear that the plea was tendered on a particular basis and the Crown accepted the plea on that particular basis, then it is only that basis on which the sentencing Judge should have proceeded. There may well be cases where the Crown would accept a plea of guilty without being in a position to say whether or not they agreed with what was going to be narrated in mitigation and, provided this was made clear to the defence and the defence still maintained the plea, then the position could arise where the sentencing Judge would not necessarily have to accept what was said in mitigation and would go through the procedure whereby a proof in mitigation might have to be led. However, that does not appear to be the position in the present case and we shall therefore proceed to deal with the matter de novo.

The circumstances as narrated by the sentencing Judge appear to be that two traffic officers on duty on the A74 stopped a car which was being driven erratically. The driver was a man named Coll and the appellant was the front seat passenger. There was also a child in the car. As Coll was unable to produce any documents the car was taken to Lockerbie Police Station. On arrival there the appellant left the car, and a woman police constable in the vicinity saw a package lying on the ground beside the rear wheel of a police car after the appellant had passed it. When interviewed the appellant indicated that she had had the package in her possession for a short time in England during part of the journey back to Scotland. She knew it contained drugs but thought it was amphetamine. She admitted also removing the drugs from the car at Lockerbie Police Station and dropping them on the ground which she said was out of a sense of loyalty to the man Coll. The package was in fact found to contain a substantial quantity of heroin of good purity.

What was said to the sentencing Judge in mitigation was that the appellant had a son aged 12 and a daughter aged 10. She had all along been prepared to offer a plea of guilty in the terms which had been accepted and she had been prepared to give evidence against her co-accused. The account given in mitigation was that she simply accompanied Coll to Blackpool and she had no knowledge of any involvement with drugs at that stage. Her first knowledge of the drugs was when the car was driven into a service station and Coll asked her to hold a package while he went into the service station. She at that stage appreciated that this package contained drugs although she thought that they were amphetamine. When the car was stopped by the police and taken to the police station she placed the package of drugs under the car wheel out of misplaced loyalty. It was also made clear that she was willing to give evidence against Coll although we are informed that for some reason the case against Coll was not called and indeed no further proceedings have been taken against Coll.

The sentencing Judge, as we have indicated, said that he found the appellant's version of events particularly unconvincing but in view of the fact that that was the basis upon which the plea was tendered, as we have said, we shall proceed to deal with the matter de novo.

It is clear therefore that as far as the appellant's involvement was concerned, she was handling the drugs at the service station, and she knew they were drugs at that stage. It is also clear that she took steps at Lockerbie Police Station to try and divert the police attention from these drugs. To that extent she was undoubtedly concerned in the supplying of the controlled drug. It is, however, clear that her involvement was substantially at the lesser end of the scale and in these circumstances we consider that a sentence of four years is by no means appropriate. What we propose to do is to quash the sentence of four years' imprisonment and substitute a sentence of eighteen months' imprisonment, which will be backdated to 25 September 1998.