Scottish High Court of Justiciary Decisons

DAVID SANTINI and CHRISTOPHER McCOLL and GEORGE FAULKNER v. HER MAJESTY'S ADVOCATE [2000] ScotHC 68 (21st June, 2000)

We have before us appeals against sentence by David Samuel Santini, Christopher McColl and George Faulkner, all of whom went to trial at the High Court at Glasgow on an indictment containing a single charge of being concerned in supplying diamorphine, a Class A drug, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. All three were convicted.

The appellant David Santini appealed against conviction and his appeal was refused by this Court in Opinions dated 16 June 1999 and 3 May 2000. In the second Opinion the Court had occasion to give a fairly detailed account of the circumstances of the offence and of the involvement of the appellants. Instead of repeating what was said on that occasion, we shall refer to the terms of that Opinion while making certain additional observations, particularly in respect of the appellant George Faulkner.

David Santini was convicted of the offence as libelled in the amended charge, that is as covering a period from 20 December 1996 to 26 June 1997. One of his contentions in the appeal against conviction was that his conviction should have been restricted to an involvement on two dates, 23 and 26 June 1997, but this contention was rejected by this Court and the circumstances relating to his involvement were dealt with at length in the Opinion of the Court. In presenting the appeal for Santini today, Mr Henderson argued that the Court should, when considering the matter of sentence, have in view the fact that at one stage of the appeal proceedings, as is recorded in the Opinion of the Court, the Advocate Depute had made a concession that the appellant's involvement should be confined to the dates of 23 and 26 June. Nonetheless we are satisfied, for the reasons which were given in the Opinion of the Court on the previous occasion, that the conviction in the terms recorded by the jury's verdict was soundly based and that in dealing with the matter of sentence we have to proceed on that basis.

The trial judge imposed a sentence of 13 years imprisonment. As Mr Henderson pointed out in his second submission, although Santini had four previous convictions, they were all minor, having been dealt with in the District Court or the Sheriff Summary Court. The trial judge had no regard to them in determining the appropriate sentence to impose in this case. It is clear also from the trial judge's report that he regarded Santini and McColl, with whom he associated, as having played the most important roles in the operation. Mr Henderson argued that, even if we were to proceed on the basis of the verdict of the jury and even if we were to assume therefore that the roles of McColl and Santini could be regarded as being equivalent, nonetheless there was an important distinction between the position of McColl and Santini: Santini had no analogous previous conviction and indeed no previous convictions of any significance for the purpose of sentencing, whereas McColl had an analogous previous conviction.

We turn now to the case of Christopher McColl. He tendered a plea of guilty in respect of the period from 20 December 1996 to 26 June 1997, on the fourth day of the trial after James Faulkner had given evidence on behalf of the Crown. Mr Donaldson pointed out that, on the opening day of the trial, McColl had tendered a plea of guilty to the indictment covering a period of 23 to 26 June 1997 but that that plea had not been accepted by the Crown. Obviously, that earlier plea covered a very much more restricted period than the plea which was eventually tendered by McColl after the evidence of James Faulkner. The trial judge imposed a sentence of 13 years imprisonment upon McColl, reflecting his view that McColl was, along with Santini, one of the two principal offenders. The trial judge tells us that he considered reducing the sentence to be imposed on McColl to reflect the fact that he had indeed tendered a plea of guilty when he did, but in the end he decided that no reduction was appropriate having regard to McColl's record which, as we have indicated, included a conviction in the High Court in June 1990 for contraventions of section 4(3)(b) and 5(3) of the Misuse of Drugs Act 1971 for which sentences of 4 years and 6 months concurrently had been imposed.

Mr Donaldson argued that the trial judge should have given more credit to McColl for the fact that he had indeed pled guilty during the course of the trial. More particularly he said that the trial judge had not proceeded on the basis of the terms of the plea in mitigation in which counsel for McColl had pointed to Santini as having played the leading part and more significant role in the offence. Mr Donaldson said that the Crown had not contradicted the plea in mitigation put forward on behalf of McColl. But, as the trial judge notes, there was in effect no evidence in the case which clarified the relationship between the two men and in these circumstances we can see no basis upon which the Crown could have been expected to indicate its view, one way or the other, as to what was said on behalf of either the appellant Santini or the appellant McColl in respect of these matters. It follows also that there was no evidential basis upon which the trial judge himself could determine what precisely the relationship between the two had been. We are therefore satisfied that the trial judge was correct in approaching the matter of sentence, as he did, by dealing with it on the basis of the inferences which he felt he could draw from the evidence which was led, taken as a whole. Mr Donaldson raised one particular matter relating to a comment by the trial judge to the effect that McColl had had the key to the flat in Dumbarton Road in Glasgow where the drugs raid eventually took place, the suggestion being that this indicated that he had a particularly prominent role in relation to that matter. The trial judge accepts in his report that the evidence did not go that far, but it did show that McColl and Santini had the means of entry to the flat on the occasion in question.

Turning now to the appellant George Faulkner, the trial judge's report indicates that at the conclusion of all the evidence, both for the Crown and the defence, the appellant Faulkner tendered a plea of guilty covering the period from 20 December 1996 to 26 June 1997. In presenting the appeal today Mr Jackson pointed out - what we had already noticed - that the plea was tendered at the stage when both the Crown evidence, and more particularly the defence evidence, was completed. The obvious point was that it had been tendered at that stage to avoid any risk that Faulkner might be called upon to give evidence. Mr Jackson said that this was indicative of the fact that Faulkner had been frightened and had thought it right to say nothing and to remain silent. But his brother, James Faulkner, did indeed give evidence for the Crown and from that evidence it emerged that he had made his house in Drumchapel available as a store house for drugs. As the trial judge explains, the evidence showed that George Faulkner was a link between his brother, and the store house in Drumchapel, and Carroll who was the tenant of the flat in Dumbarton Road where the drug operation was being carried on at the time of the police raid. The trial judge indicates that Faulkner was, in that sense, a strong link between the operators and that he transported drugs in bulk between the various premises. Mr Jackson accepted that he was, in that sense, a link and in particular that he did indeed involve himself in transporting drugs. He was present in the flat in Dumbarton Road along with McColl and Santini on 23 June. On the evening of 26 June, the evening of the raid, he was seen to bring a large plastic bag to the flat and to try to gain entry but then to go away again and to return subsequently at a time when the others were in the flat and he was admitted. Mr Jackson made the point that this indicated that George Faulkner, at least, did not have means of access to the flat. Mr Jackson argued that that was indicative of the comparatively minor role which Faulkner played in these matters.

The trial judge sentenced Faulkner to a period of 12 years imprisonment. He decided to limit the sentence to 12 years and, in making that reduction, he took into account the fact that he was a first offender, while observing - as has often been observed in similar cases - that it was suggested that he had been deliberately used because he was not known to the police. The judge tells us that he took into account the facts that Faulkner pled guilty, albeit at a late stage in the trial, and that his role appeared to have been slightly less important than that of Santini and McColl, though vital to the operation as a whole. Mr Jackson said that this was to over-estimate the significance of Faulkner's role which was materially less than that of Santini and McColl, the true ringleaders.

We have carefully considered the submissions made to us, and we have also had regard to the fact that this was, on any view, a most serious offence involving, as it did, the third largest amount of heroin recovered by the police in Scotland up until that time. The quantity was sufficient to provide the contents of over 50,000 score bags. It is plain that heavy sentences were appropriate and indeed demanded by the trial judge's public duty. We also remind ourselves that the maximum sentence laid down by Parliament for this offence is life imprisonment.

Against that background it appears to us that, even making allowance for the fact that McColl pled guilty at a late stage in the trial, the sentence of 13 years imposed upon him cannot be regarded as excessive, particularly when one bears in mind the fact that he had the previous conviction for an analogous offence for which he had been sentenced to 4 years imprisonment. We therefore refuse his appeal against sentence.

So far as the appellant Santini is concerned we proceed on the same basis as the trial judge, namely that he was indeed involved as one of the two ringleaders. Nonetheless it does appear to us that the comparative records of the two men are a relevant factor to which the trial judge appears to have given insufficient weight when determining the sentence for Santini. Taking that matter into account, we shall quash the sentence of 13 years imprisonment and substitute a sentence of 11 years imprisonment backdated to 26 June 1997.

In the case of George Faulkner we accept in general the trial judge's assessment of his involvement in these matters. We do not consider that his role can adequately be described simply as that of a gopher: he was clearly involved to a very significant extent over a long period. On the other hand we accept that his role was less than that of McColl and Santini. We shall reflect that assessment of the position by quashing the sentence of 12 years imprisonment imposed by the trial judge and substituting a sentence of 9 years imprisonment backdated to 26 June 1997.

LIN