Scottish High Court of Justiciary Decisons

JOHN HEALEY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 69 (22nd June, 2000)

We have before us appeals against sentence by Graeme Mason and John Healey who were convicted at the High Court in Edinburgh, after a trial lasting some twelve weeks, of being knowingly concerned in the fraudulent evasion of a prohibition then in force on the importation of cannabis resin under the Misuse of Drugs Act 1971 Section 3(1)(a), contrary to the Customs and Excise Management Act 1979 Section 170(2). In both cases the conviction related to the period from 1 January 1994 until 28 September 1997 and related to various addresses in Glasgow, elsewhere in Scotland, various places in England and in the Benidorm and Torremolinos areas of Spain as well as in Ireland.

So far as the matter of sentence is concerned, it is not necessary to rehearse the details of the elaborate scheme which had been devised for the importation of cannabis resin and in which both Mason and Healey were involved. Put shortly, the scheme involved trips being made with children and young people to Spain by minibus and return journeys from Spain by minibus. The scheme involved the purchase of drugs in Spain, their concealment in the minibus and the importation of the concealed drugs on the return trip. When the two minibuses were stopped on 28 September 1997 on the M74, cannabis resin to the estimated value of £250,000 was found in a void under the floor of one of the buses.

As far as Mason is concerned, as the trial judge tells us, the evidence showed that he had been involved in ordering and paying for the building of the minibus. The scheme had run over a period of years and on earlier trips another minibus had been used with a concealed compartment under the rear seats. There was evidence of movements of other persons involved in the scheme which pointed to the fact that drugs had been smuggled on trips during 1994, 1995, 1996 and 1997 up until the minibus was stopped in September 1997. From the evidence it appeared that Mason and others had been involved in taking sums of cash out to Spain for the purpose of buying the cannabis resin which was then brought back in the bus. In that respect his role was clearly vital to the success of the scheme over the years.

The trial judge said that the only appropriate sentence was a lengthy period of imprisonment. In determining that period of imprisonment the trial judge rightly, in our view, regarded Mason's previous convictions as having no bearing on the determination of the sentence. On the other hand, he did take account of the fact that Mason suffered from a fairly serious heart condition for which he had had to undergo a triple by-pass operation in 1991.

Mr McVicar, appearing for him today, tendered a letter dated 20 June 2000 from the medical officer at Glenochil indicating that there had been a deterioration over the last two to three years in Mason's peripheral vascular disease and in his heart condition.

Taking account of that matter the trial judge sentenced him to eight years' imprisonment and it appears from what he says in his report in relation to the appellant Healey that, had it not been for the special circumstances of Mason's health, he would have been disposed to impose a sentence of nine or ten years' imprisonment. In addition, having regard to Mason's health, the trial judge backdated his sentence to 27 November 1997, even though he had not been in custody all the time since that date. He says he did so to allow for what he realised would have been the particular strain on Mason of the trial proceedings, extending as they did over such a long period.

The question for us is whether the sentence of eight years imprisonment can be regarded as excessive, having regard to the nature of the offence, comprising a scheme carried out over several years for the importation of what clearly were substantial quantities of cannabis resin and involving the use of children and young persons as a means to cover up the true nature of the enterprise.

In our view, even taking account of all that has been said about Mason's health, we are unable to say that the sentence of eight years which he chose was excessive. The appeal against sentence is accordingly refused.

So far as the appellant Healey is concerned, he was also convicted of the charge for the period from 1 January 1994 until September 1997. In sentencing him the trial judge proceeded on the basis that he had been involved to a significant extent in the scheme which we have described.

The trial judge drew attention to a number of factors which suggested to him that the appellant's involvement had indeed been significant. This aspect of his reasoning was subject to comment by Mr Jackson today. The trial judge referred to the fact that in April 1997, about the time of one of the trips by the minibus, a quantity of cannabis resin five times as large as the consignment found in the bus was seized by the Spanish police when it was under the control of two associates of the appellant who were detained. After their detention there was telephone contact on a number of occasions between telephones to which the appellant Healey had access and telephones at the homes of the wives and girlfriends of the two detained men. There was also contact with their solicitors in connection with arranging legal assistance for them.

Mr Jackson accepted that it was open to the jury and to the trial judge, indeed, to take the view that this was part of the importation enterprise but he said that the mere fact that these men were associates of the appellant did not really take the matter any further, as far as concerned the appellant's involvement in the enterprise.

The trial judge also drew attention to the fact that the appellant had been with another man in November 1994 in Gatwick Airport when the other man was intercepted by customs officers carrying the sum of £170,000 from Spain. Mr Jackson indicated that in reality at the trial the Crown's purpose in introducing the evidence about this sum of money had been to try to establish that the notes themselves were tainted by traces of drugs but, as a result of cross-examination, that particular line of attack had fallen away and indeed the man who had been carrying the money was acquitted of any involvement. So, again, Mr Jackson said that this incident did not take the trial judge any further in the question of sentence.

Mr Jackson also pointed out that the trial judge had mentioned that Healey was a close associate of the regular driver of the bus, Michael Bennett, but again the significance of that point dissolved when it was noticed that Bennett had been acquitted by the jury.

Having regard to these matters Mr Jackson said that there was really nothing to show that Healey's involvement had been of a truly significant extent, or at least that it had been any greater than could be seen by the evidence relating to his involvement, for example, with the arrangements to raise the floor of the minibus in 1996 in order to create the void space in which the drugs were carried. That showed that he had indeed been involved but there was nothing to show that his involvement had been at a significantly high level and nothing, in particular, to show that it had been of a higher level than that of his co-appellant Mason. Without intruding upon the appeal by Mason, Mr Jackson simply said that there had been a distinction made between Mason and Healey which was one of two years and which on the overall approach was not justified.

We take account of the points made by Mr Jackson as to a number of the items to which the trial judge drew attention, but we also think it right to stand back and to look at the overall position - which is that Healey was convicted of being concerned, over a period of well over three years, in this sophisticated operation for importing cannabis resin. The operation involved the cynical use of children and young people as cover. Whatever his exact role may have been, he was involved in the operation of raising the floor of the minibus and he obviously was generally concerned with the welfare of other participants in the scheme at various levels. In these circumstances we are satisfied that it was indeed open to the trial judge to take the view that Healey's role was not insignificant in the overall scheme.

Approaching the matter in that way, we have to consider whether it can be said that the sentence of ten years' imprisonment was excessive. Even equiparating the position of Healey and Mason, if that be correct, we notice that the trial judge made a discount for Mason's health, as he was fully entitled to do. If we allow for that discount and for all the circumstances relating to Healey and if we look at the matter from the standpoint of comparative justice, as well as in absolute terms, we are unable to say that the sentence of ten years' imprisonment for this offence was excessive. The appeal must therefore be refused.