Scottish High Court of Justiciary Decisons

RICHARD JOHN AGAR v. HER MAJESTY'S ADVOCATE [2000] ScotHC 78 (25th July, 2000)

The appellant is Richard John Agar, who was convicted at the High Court at Edinburgh of being concerned in the supply of amphetamine, contrary to Section 4(3)(b) of the Misuse of Drugs Act 1971. On that occasion he was also convicted of a charge that at the Forth Road Bridge and on the A90 road between South Queensferry and the Barnton roundabout, Edinburgh, he did drive a motor vehicle dangerously and in particular, that at the Forth Road Bridge, he caused it to strike a barrier whereby the barrier and car were damaged, and that on the A90 road he drove the vehicle at excessive speeds of up to 130 mph, contrary to Section 2 of the Road Traffic Act 1988. The trial Judge sentenced him to 12 years imprisonment on the drugs charge and to a concurrent period of one year imprisonment in respect of the road traffic charge. She also disqualified him from holding a licence for 10 years on the second charge.

The appellant appealed against both conviction and sentence. On 17 March 2000 the Court refused his appeal against conviction. We refer to the Opinion of the Court on that occasion for a narrative of the circumstances relating to the drugs offence. The only point which we need to add is that the amphetamine which was recovered from the two holdalls formed 25 packages with a total weight of about 16 kilos. The purity of the drug ranged between 47% and 91% and the total estimated potential street value was between £5,000,000 and £10,000,000.

In addressing us today on the matter of sentence, Mr Wheatley accepted, of course, that the offence of which the appellant had been convicted was a serious one, but nonetheless he argued, so far as the matter of the drug offence was concerned, that the sentence of 12 years could properly be regarded as excessive, having regard to the nature of the appellant's involvement and having regard also to the comparative justice of his sentence in relation to the sentence of 8 years imposed upon a co-accused, Peacock.

So far as the question of the appellant's involvement is concerned, Mr Wheatley simply submitted that he was a courier and had not been involved at any higher level in the offence. He had gone north to meet the cargo and had driven it down to Edinburgh. We are prepared to accept that he did indeed act in this matter simply as a courier.

So far as Peacock is concerned, Mr Wheatley submitted that his role was certainly no less than that of the appellant. He had in effect driven down in convoy with the appellant and had therefore performed a very similar role to that of the appellant. Indeed, since he was there to shadow the appellant, it might have been that he occupied a higher level in the organisation. But even accepting, Mr Wheatley said, that Peacock had been involved at the same sort of level, the difference between the sentence of 8 years imprisonment imposed on him and the sentence of 12 years imprisonment which had been imposed on the appellant could not properly be justified. In saying that, Mr Wheatley acknowledged that Peacock had appeared, and had been sentenced, as a first offender, whereas the appellant had a record of previous convictions. In particular in 1985, at Maidstone Crown Court, he had been convicted of a charge of importation of controlled drugs under Section 3 of the Misuse of Drugs Act 1971 for which he had received a sentence of 12 months imprisonment.

Dealing with the sentence in relation to the drugs offence first, we consider that, having regard to the quantity of the drugs involved and having regard to the appellant's previous conviction, it is not possible for us to say that the sentence imposed upon him was excessive. Nor can we say that there was any failure to differentiate properly between his sentence and the sentence imposed upon Peacock. On the contrary, it appears to us that, leaving aside their respective roles, the difference between the two sentences is adequately justified by the previous conviction of the appellant.

In relation to charge 3, the road traffic charge, Mr Wheatley submitted that the appellant had been convicted simply of dangerous driving at excessive speed and that, had that charge stood by itself, a sentence of imprisonment for one year would not have been justified. He pointed out in particular that there was no evidence of any potential dangers to other road users. There was no evidence that there had been an accident, nor that anybody had been injured. The only damage to property had been damage to the barrier and to the car. He submitted that the fact that the appellant was trying to get away from the police was simply a circumstance of the offence and not one which aggravated it in any way. So far as the disqualification of the appellant for 10 years was concerned, Mr Wheatley described that as grossly excessive, given that the last time that the appellant had been convicted of a road traffic matter was in 1991 when he had been visited with three penalty points. There was nothing in the appellant's driving record which justified the imposition of such an extended period of disqualification.

So far as the question of imprisonment is concerned, we are satisfied that, having regard to the deliberate nature of the appellant's act in driving through and damaging the barrier and damaging the car and then driving at the excessive speed of 130 mph along that particular stretch of road, the sentence was indeed justified in all the circumstances. However, we consider that the imposition of a period of 10 years disqualification can indeed be regarded as excessive, in the light of the appellant's previous driving record. We shall therefore quash the disqualification of 10 years and substitute a disqualification of 5 years. For the rest, the appeal is refused.

AUD