APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal Nos: C74/99
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEALS AGAINST SENTENCE
HER MAJESTY'S ADVOCATE
KATHERINE PHYLLIS CALLAGHAN and
Appellant: Lord Advocate (Lord Hardie of Blackford, Q.C.); Crown Agent
Respondents: Scott; J. Friel: Prais, Q.C.; Murray Hamilton & Chalmers: P. Wheatley solicitor advocate; Franchi Finnieston
19 August 1999
We have before us three appeals by the Lord Advocate under Sections 108 and 110 of the Criminal Procedure (Scotland) Act 1995 on the ground that the disposals made in respect of the respondents by the Trial Judge were unduly lenient. The respondents are Stanley Carnall, Katherine Phyllis Callaghan and James McGing. This was the order in which they appeared on the appeal roll and it was the order in which the Lord Advocate dealt with the appeals. We shall accordingly adopt that order, which is, however, different from the order in which the respondents appeared on the indictment. All three respondents were convicted of being concerned in the supplying of Diamorphine, a Class A drug, to another or others at various addresses in England and Scotland between 5 March and 5 June 1998. The Trial Judge sentenced Carnall to six years imprisonment backdated to 24 September 1998; imposed on Mrs. Callaghan a probation order for two years and a Community Service Order requiring her to do 100 hours unpaid work; and sentenced McGing to three-and-a-half years imprisonment backdated to 19 January 1999.
Circumstances of the Offence
The sentencing judge gives an outline of the facts as disclosed in evidence to the jury. On 5 June 1998 the transfer of a quantity of heroin took place at Charnock Richard Service Station on the M6 near Preston. Police and Customs and Excise officers were keeping a watch there. Carnall and his sister, Mrs. Callaghan, had travelled from Liverpool to the service area in separate cars. They arrived in convoy and parked in the car park. Although this is not mentioned by the Trial Judge, we were told that Mrs. Callaghan's three children were in the car with her. The officers keeping watch saw Carnall approach the car in which Mrs. Callaghan was sitting. He passed a black rucksack and another package into the car. Thereafter McGing arrived in another car and parked immediately adjacent to Carnall's car. McGing and Carnall were seen in conversation and they then went into the service station together. Mrs. Callaghan also went into the service station and came out again a few minutes later and got into her car. McGing then came out of the service station and approached her car. She handed him the black rucksack which Carnall had passed to her. He put the rucksack in his car and drove off. Police officers followed him and stopped him on the M6 just south of Abingdon. He was heading for Glasgow where he lived.
The police officers found the rucksack in the boot of his car and, when they opened it, they found that it contained wrapped packages. The packages were examined by forensic scientists who reported that each of the ten packages weighed about half a kilogram and contained heroin, much of it of high purity. The street value of the heroin was assessed at over £663,330 on the basis of there being 5 Kg. of heroin made up of 10 packages each containing 500 gm. The street value was the total amount which this quantity of heroin could be expected to fetch when cut and made up into £10 deals.
At the time only McGing was arrested. But some months later police officers searched Carnall's house. They found documents which, according to evidence given by a police drugs expert, were consistent in form with records of dealing in drugs. In particular, a number of figures represented the weights, volumes and values of various drugs, including heroin. Although the charge on which the appellants were convicted related to the period between March and June 1998 and these items were found in Carnall's house some months later, the Crown relied on the evidence relating to them at the trial and it was accepted that the Trial Judge had been entitled to have regard to them in considering the position on sentence. We should add that the only evidence of events before 5 June 1998 appears to have been evidence of activity by Carnall and McGing on 4 June.
Carnall did not give evidence. Mrs. Callaghan did and she admitted taking the rucksack to the service station and giving it to McGing. She claimed that it belonged to her boyfriend who had left it at her house. She had arranged with him that she would take the rucksack to the service station and give it to someone who would come to collect it. She did not know what was in it. It can be seen that the version which she gave is in some respects different from the version spoken to in evidence by the police witnesses. In particular, they say that Carnall handed the rucksack to her in the service area car park, whereas she says that she got it from her boyfriend and agreed to take it to the service station. It appears from the Trial Judge's description of Mrs. Callaghan's role as "minimal" that he must have proceeded on the version given by the police - perhaps on the view that in her evidence she was seeking to protect her brother, Carnall. McGing also gave evidence and admitted that the rucksack had been in the boot of his car when it was stopped. He also admitted that he had put it there in the service area car park, but he claimed that he had picked it up as a favour for a friend, as he was going to Liverpool anyway. He thought that the bag contained vitamins, but he had been paid £200 for his trouble.
Trial Judge's Approach to Disposal
It is convenient to set out the circumstances of the individual respondents and to notice how the Trial Judge describes his approach to sentence in each case.
Carnall is a widower who is now aged 48. At the time of the offence he was living in Liverpool and was the manager of a family security business. In his case the Trial Judge took the view that he had been a major participant in a serious crime involving a substantial amount of heroin and, no doubt, considerable profit margins. The documents found in his house showed that he was no stranger to the drugs trade. In the hearing before us, Miss Scott, who appeared for Carnall, accepted that the Trial Judge had been entitled to proceed on the view that, of the three respondents, he had played the most important role and that the others had been at most couriers. As the Trial Judge notes, Carnall has an appalling record for serious crime going back to 1964 and including long sentences for wounding with intent and for robbery. Of particular significance is the fact that, in 1984, he was convicted of a contravention of Section 170(2) of the Customs and Excise Management Act 1979, involving the importation of cannabis. On that occasion he was sentenced to 54 months imprisonment. In those circumstances the Trial Judge considered that he had "no option but to impose a considerable custodial sentence". He selected six years imprisonment. In his report to this court he acknowledges that the sentence might be thought to be lenient, but he is content to leave it to this court to say whether it was unduly so.
Mrs. Callaghan is aged 35. At the time of the offence she was living with her three children in Liverpool. As we have already noted, the Trial Judge was prepared to accept that she had played a "minimal" part in what was a serious offence involving a substantial amount of a Class A drug. In his report to this court, he observes that she had young children to look after and was very distressed by the whole affair. She had never been in trouble before and it was plain to the Trial Judge that she had got into bad company. Although the Trial Judge does not spell out what he means by this, her counsel at the appeal, Mr. Prais, Q.C., submitted that from the circumstances it was clear that the Trial Judge had been referring to her brother, Carnall, who had had a significant influence over her. Counsel for Carnall did not dispute this. In all the circumstances the Trial Judge decided to give her the chance to prove that she could keep out of such company and be a useful citizen. For this reason the Trial Judge placed her on probation for two years on the clear understanding that, if she offended during that period, she would go to prison for the offence. The Trial Judge also ordered her to perform 100 hours community service, the maximum available in England, in order to bring home to her the gravity of being involved in the supply of drugs. The Trial Judge concludes by saying, "I accept that in doing so I was showing a considerable measure of leniency. Whether that was unduly so, I leave to your Lordships."
We should add that, although it would have been open to the Crown to apply to the court to direct that the probation order and the community service order should be suspended pending the determination of the appeal (Section 121A(1)), no such application was in fact made. The Lord Advocate informed us that the matter had simply not been considered. The result was that, by the time of the hearing of the appeal, Mrs. Callaghan had successfully completed the 100 hours of community service.
McGing is aged 34. Though originally from Liverpool, he lived in Glasgow with his wife and children. In explaining his decision to impose a sentence of three-and-a-half years imprisonment on McGing, the Trial Judge says in his report that he took the view that this was a serious crime in which McGing had agreed to carry what he knew to be drugs and to do so for money. The amount of heroin involved was, to say the least, substantial and no doubt there would be considerable profit margins. McGing had previous convictions. We note that in fact he has two previous convictions from 1996 and 1997, the first involving a contravention of Section 5(2) of the Misuse of Drugs Act 1971, which was prosecuted under summary procedure in the Sheriff Court in Glasgow and resulted in a deferred sentence. The Trial Judge adds that "in retrospect, it might be said that the sentence I imposed was lenient", but leaves it to this court to say whether it was unduly lenient.
The Test and the Grounds of Appeal
It is clear from the terms of his report that, in the case of each of the respondents, the Trial Judge is conscious that the disposal which he made can be regarded as lenient. Nor did counsel for any of the respondents suggest that he had been wrong to characterise the sentences as lenient. They simply argued that, although the sentences could properly be described as "lenient", that was in itself of no significance since this court could interfere with the sentences selected by the Trial Judge only if we were satisfied that the Lord Advocate was correct in his view that the disposals were "unduly lenient" (Section 108(2)(i) of the 1995 Act). It is well established that, in applying this test, this court will regard a sentence as "unduly lenient" only if it falls
"outside the range of sentences which the judge at first instance, applying his mind to all the relevant factors, could reasonably have considered appropriate. Weight must always be given to the views of the trial judge, especially in a case which has gone to trial and the trial judge has had the advantage of seeing and hearing all the evidence. There may also be cases where, in the particular circumstances, a lenient sentence is entirely appropriate. It is only if it can properly be said to be unduly lenient that the appeal court is entitled to interfere with it at the request of the Lord Advocate." (H.M. Advocate v. Bell 1995 S.C.C.R. 244 per the Lord Justice General (Lord Hope) at p. 250D).
In the ground of appeal lodged in each of the cases the Lord Advocate gives some specification of the basis upon which he contends that the sentence or order is unduly lenient. He says that "it failed to reflect the gravity of the offence and the respondent's role in it, having regard to the value of the drugs and the consequences of their distribution." Counsel for Carnall pointed out, correctly, that it was not said that the Trial Judge had failed to attach due weight to the number or gravity of his previous convictions.
We turn now to deal with each of the appeals starting with the appeal against the sentence of six years imposed on Carnall.
The Lord Advocate began by explaining that he had at one time thought of asking the court to pronounce an opinion containing guidance on the sentences or disposals which would be appropriate in other cases (cf. Section 118(7) of the 1995 Act) but he had decided not to do so, since he had come to the conclusion that it would be difficult for the court to go beyond the guidance already to be derived from sentences in previous cases. He would therefore be content if the court were to indicate that anyone convicted of being involved in supplying drugs, especially Class A drugs, could normally expect to receive a custodial sentence, although there could be exceptional circumstances where this would not be appropriate.
In this case, given the restricted issue which is before the court and given the correspondingly restricted submissions to which we listened, we prefer not to attempt to formulate any general statements. The respondents were all convicted of being concerned in supplying a huge amount of heroin with a potential for wreaking misery among countless users - the calculation of the street value proceeds, after all, on the basis that the quantity of heroin discovered in the boot of McGing's car could have made over 66,000 deals. In a case of that kind it is obvious that a custodial sentence - and indeed a substantial custodial sentence - will be the norm. That was not disputed by counsel for the respondents.
The test as analysed in Bell requires us to consider whether the sentences fall outside the range which the judge at first instance could reasonably have considered appropriate. In addressing us the Lord Advocate referred to the abbreviated reports from Green's Weekly Digest of a number of cases where the court had considered appeals against sentence by accused persons. He argued that the results of those appeals could guide us as to the range of sentences which would be appropriate in cases such as the present. Both Miss Scott and Mr. Prais criticised that approach. They pointed out that in the cases referred to by the Lord Advocate the court had been concerned to decide whether the sentences could properly be regarded as excessive. They might therefore give an indication of sentences which did not go beyond the upper end of the range of appropriate sentences, but they could not go further and give guidance as to the whole range of sentences which could be regarded as appropriate. In particular, they could not be used to establish what was the lower end of the range. There is force in that criticism. We refer to the not dissimilar problem which arose in H. M. Advocate v. Wheldon 1999 J.C. 5 at pp. 14 C - 15 H (per the Lord Justice General) and at pp. 23 G - 24 H (per Lord Bonomy). For that reason we did not find that the authorities cited by the Lord Advocate could give any clear guidance as to where the lower limit of the range of appropriate sentences lies.
That is not to say that the sentences in the earlier cases were of no value: they go some way at least towards indicating the appropriate level of sentence for the offence in question in specific circumstances. In particular we found assistance in the case of Buchanan v. H.M. Advocate 1998 G.W.D. 39-2012 where this court upheld a sentence of 8 years imposed on a young man of 22 who had pled guilty to being concerned in supplying heroin to the value of about £200,000 over a five-month period. He was a first offender who had been a student at Aberdeen University and had indeed graduated by the time of his appeal. He was himself an addict and had supplied the drug to other young people in order to help pay for his own habit. He had admitted his guilt and tendered an early plea. All the circumstances of that case can be regarded as significantly more favourable to the appellant than are the circumstances of Carnall's involvement.
In applying our own experience to the question in the appeal, we also bear in mind that Parliament increased the penalty available to courts for a contravention of Section 4(2)(b) of the Misuse of Drugs Act 1971 to life imprisonment. We should add that we have, of course, given due weight to the fact that the trial ran its full length and that the Judge accordingly had the advantage, denied to this court and indeed to all of the counsel dealing with the appeal, of hearing the evidence and observing the demeanour of the participants.
In the case of Carnall, not only was he convicted of this extremely serious offence, but it was also recognised by his counsel that the court could properly proceed on the basis that, while his precise role in the affair remained obscure, of the three respondents he had played the most important part in the crime. His sister, Mrs. Callaghan, had accompanied him to the service area; he had given her the drugs which she had in due course passed on to McGing who had come there to collect them and take them on, apparently to Glasgow. Carnall was no stranger to the drug dealing scene, as the items found in his house demonstrated. We are therefore considering someone who plays an important role in an operation involving 5 kilograms of heroin. Moreover, he is a man who is no stranger to drugs and whose very substantial criminal record includes a conviction for illegal importation of cannabis. Having regard to all these factors, we have no doubt that the sentence imposed on Carnall can properly be regarded as unduly lenient. We shall accordingly allow the Lord Advocate's appeal in his case and quash the sentence of six years and substitute a sentence of 10 years backdated to 24 September 1998.
Mrs. Katherine Phyllis Callaghan
As we have explained, the Trial Judge sentenced Mrs. Callaghan on the basis that her involvement in the crime had been minimal. We attach importance to this view since he was in a much better position than we are to judge that matter and especially to determine what weight, if any, should be given to her own account of her involvement in the crime. On the police evidence Mrs. Callaghan's role appears to have been confined to driving to the service area in convoy with her brother and there taking the rucksack from her brother and handing it over to McGing. What she did when she went into the service station we do not know. Nor do we know what happened to the package which Carnall gave her. Although the Lord Advocate at one point described Mrs. Callaghan as performing the role of a courier, he later indicated that it might be more appropriate to describe her as that of a depositary for the rucksack containing the drugs. He contended that, nevertheless, in view of the jury's verdict indicating that she had been involved in supplying this large quantity of heroin, a custodial sentence had been called for. The fact that she had completed the community service order did not matter: the court should still impose a custodial sentence, while making such reduction as it thought appropriate to reflect the fact that Mrs. Callaghan had done the work required under the community service order. In this connexion the Lord Advocate referred us to H. M. Advocate v. McKinlay 1998 S.C.C.R. 201 at p. 206 D per the Lord Justice Clerk (Lord Cullen).
On behalf of Mrs. Callaghan Mr. Prais said that in the particular circumstances the sentence should not be regarded as unduly lenient. Her involvement in the offence had been minimal and she had done what she did because of the influence of others - certainly including her brother, who was an experienced criminal. She, by contrast, had never been in any kind of trouble before.
Mrs. Callaghan had three boys, the eldest nearly 15 and the youngest almost 4. She had been the person mainly responsible for bringing up the children and, if she had gone to prison, there would have been no-one else who could perform this role. The father of the two older boys was her former husband and, although he was happy to support them financially, he was not prepared to take over their care. The man with whom she lived at present, the father of her youngest boy, had health problems which would prevent him from looking after the boys. The older boys, in particular, had reacted badly during the short period when she was in custody after conviction and before sentence. Now the school had indicated that her oldest boy had made up lost ground and would be going into the A Band at school after the summer holidays. The well-being of her children would have been put at risk if a custodial sentence had been imposed by the Trial Judge; the same would apply if we were now to impose such a sentence.
Mr. Prais also pointed out that Mrs. Callaghan had a good work record. At the time of the offence she had been working for the telesales operation of British Telecom and she had recently been offered a job as an Office Secretary with Marine & Industrial Services N.W. Ltd. The starting date was 23 August 1999 and it would involve her in a period of some six weeks training in order to allow her to take over the job in question for 8 October.
Mrs. Callaghan very much appreciated the nature of the probation order and in particular that, if she were to breach that order, she would be liable to be sent to prison. Mr. Prais said that, from her reaction, it was plain that the prospect of that happening was something which filled her with horror.
Mr. Prais himself accepted that the Judge had shown considerable leniency. Even having regard to the various circumstances applying to Mrs. Callaghan at the time, we tend to the view that the leniency shown was undue. After all, as Mr. Prais was the first to point out, it was Mrs. Callaghan's own actings which exposed her to the risk of a substantial prison sentence and threatened to destroy the future of her children. None the less, even where the court is satisfied that an order was unduly lenient, it still has a discretion under Section 118(4) as to the course which it should adopt. In the particular circumstances of this case, we have come to the view that, even if the orders could be described as unduly lenient, it would not be proper to quash them and substitute a prison sentence at this stage. In forming that view, we have taken account of the fact that the Crown failed to exercise their power under Section 121A to apply to have the orders suspended. The result has been that, as she was bound to do, Mrs. Callaghan has complied with the community service order and has completed the work required of her. On any view that in itself would be a point of some significance. But, more importantly, we have also been most impressed by the glowing report which she received from the Probation Service who described her response to the combined probation order and community service order as "exemplary", while her attitude to the community service order and her performance of the order are both described as "excellent". The Respite Manager of the Elderly Persons Home where she did the work said that her time-keeping had been excellent and her care very good. She was honest and very trustworthy. He added that "If the opportunity occurred in the future we would have no hesitation in offering her suitable employment should she wish to apply for any vacant posts." These testimonies to the way in which Mrs. Callaghan has responded to the opportunity which the Trial Judge's disposal gave her demonstrate that she has done everything in her power to show that she wants to build a proper future for herself and her family.
For the reasons which we have given, we are conscious that we cannot deal with Mrs. Callaghan's disposal simply as if we were the Trial Judge. Much of significance has happened since he pronounced the two orders and we cannot simply ignore it. Having considered all the factors which we have mentioned, and in particular in view of the fact that Mrs. Callaghan's involvement in the offence appears to have been completely out of character and that she has seized the opportunity given by the Trial Judge to build a proper future for herself and her family, we are satisfied that it would not be in the interests of justice to impose a custodial sentence on her at this stage. The probation order, which remains in effect, serves as a means by which her progress can continue to be monitored. She is already well aware that any lapse on her part is liable to be met with severe consequences. In these circumstances we shall refuse the Lord Advocate's appeal against the disposal made in respect of Mrs. Callaghan.
The Lord Advocate accepted that McGing had played a lesser role than Carnall and that the sentence should reflect that difference. At best he had acted as a courier and he should be treated as such: none of the usual mitigating grounds - such as shortage of money or the need to feed a drug habit - had been advanced on his behalf. He had a previous, albeit minor, conviction for a drugs offence. The Lord Advocate drew attention to two cases which the court might wish to consider. The first was McLellan v. H. M. Advocate 1998 G.W.D. 25-1254 where the court had held that a sentence of 4 years imprisonment was not excessive in the case of the appellant who had been paid £250 to act as a courier of 15 kilograms of cannabis resin worth at most £75,000. His role had been relatively limited and he had succumbed to the temptation to become involved because he had been unemployed and in debt at the relevant time. The other case was Farley v. H. M. Advocate 1998 G.W.D. 38-1967. The appellant had been in effect a first offender who was concerned in supplying Amphetamine, worth £50,000, and Ecstasy, worth £10,000. He had acted as a courier carrying the drugs part of the way from Glasgow to Edinburgh. The court had held that a sentence of 6 years imprisonment was not excessive, but had reduced the sentence to 5 years in order to bring it into line with the sentence which a different judge had imposed on a co-accused who had a previous conviction for a drugs offence and who had acted as the courier for the rest of the journey. Measured by the yardstick of these sentences, the sentence imposed on McGing could properly be regarded as unduly lenient.
Mr. Wheatley, who appeared for McGing, did not dispute that the term "courier" would aptly describe his role in the offence. As such, he played a lesser part than Carnall. Mr. Wheatley pointed out that the manner in which the drugs were wrapped was such as to make it impossible for anyone to know what was inside. That may, of course, be so but the fact remains that McGing was convicted of being concerned in supplying heroin and we must proceed on the basis that the jury rejected any defence based on Section 28(2) or (3) of the 1971 Act. Having adopted Miss Scott's more general submissions, Mr. Wheatley stressed that the Trial Judge enjoyed a wide discretion in selecting the appropriate sentence and that he appeared to have had regard to all the relevant factors. In those circumstances he submitted that the Lord Advocate had not established that the sentence was unduly lenient.
Having considered the circumstances, we are satisfied that the disposal made in respect of McGing can properly be regarded as unduly lenient. Plainly, any sentence must be such as properly to reflect the difference between his position and the position of Carnall. We shall quash the sentence of three-and-a-half years imprisonment and substitute a sentence of six years imprisonment backdated to 19 January 1999.