Scottish High Court of Justiciary Decisons

JOHN SMITH v. HER MAJESTY'S ADVOCATE [2000] ScotHC 99 (26th October, 2000)

[1] The appellant is John Smith. He was convicted after trial in the High Court at Kilmarnock on 12 May 1997 of being party to an operation to smuggle drugs worth millions of pounds into the United Kingdom. We do not require to go into the details of the operation. They are fully set out in the judge's report. But it is plain, as is accepted in the ground of appeal against sentence, that the evidence in the case disclosed that the appellant had an important involvement in the organisation and co-ordination of the smuggling operation, albeit he was not the person who had overall control.

[2] The trial judge, when he came to sentence this appellant, together with his four co-accused, took the view that, in the light of the evidence given at the trial and since there were no substantial mitigating features in relation to the part played by the appellant placed before him, the only matters referred to being his personal circumstances, the part played by the appellant was so essential that the maximum sentence which is provided for by statute, namely fourteen years, was the appropriate sentence to be imposed.

[3[ We have to say at this stage that it must always be borne in mind that the circumstances in which a maximum sentence requires to be imposed, must depend, in substantial part, upon the particular matters which are before the court at the time. It will also be necessary require to take into account the fact that an accused, who is awaiting sentence, may have substantial previous convictions. In this case, as is plain from what was placed before the trial judge, the appellant has no previous convictions. Indeed the social enquiry report provided was in generally favourable terms so far as his previous business life and his personal life was concerned. It is therefore against that background that the selection of the maximum sentence by the trial judge starts. A further aspect must be the part which the appellant played in the operation overall. It is plain from what the trial judge tells us of that part, as set out in his report, although certain individual details of it were challenged for the appellant, that it was quite clearly essential in setting up the operation by which drugs were to be brought from Morocco into this country by fishing boat. In these circumstances, we are not surprised that the trial judge took a very serious view of the appellant's part in that operation.

[4] However, having regard to all that has been placed before us today on the appellant's behalf, we are satisfied that it can be said that, in this particular case, the trial judge took too harsh a view of the appellant's culpability in the sense that the sentence imposed against the background maximum sentence of fourteen years, was excessive. In these circumstances, we shall quash the sentence of fourteen years and for it will substitute a sentence of eleven years imprisonment.