Plooy v. Her Majesty's Advocate  ScotHC 23 (25 March 2004)
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: XC109/03
OPINION OF THE COURT
delivered by LORD JUSTICE GENERAL
NOTES OF APPEAL
DEVONNE DU PLOOY, FRANCIS ROBERT ALDERDICE, WILLIAM CROOKS and DAVID WILLIAM O'NEIL
HER MAJESTY'S ADVOCATE
Appellant: C Shead; Adams Whyte: G. Martin, Solicitor Advocate; Martin Johnston & Socha: D. Crawley, Q.C., Ms. Mitchell; Walker & Sharpe: W.G. Jackson, Q.C., Mackenzie; McClure Collins
Respondent: M. McLeod, A.D.; Crown Agent
30 March 2004 On 3 October 2003 the court issued its opinion dealing with the significance in sentencing of a plea of guilty. We now deal with the merits of these appeals against sentence.
The appeal of Devonne Du Plooy On 2 August 2002 the appellant pled guilty to a charge of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of controlled drugs, namely cannabis, contrary to section 172 of the Customs & Excise Management Act 1979. On that date he was sentenced to four years imprisonment, backdated to 24 April 2002.  On 22 April 2002 the appellant boarded a flight in Johannesburg in order to travel to Edinburgh by way of Frankfurt. At Frankfurt Airport a drugs sniffer dog detected a suspicious suitcase. It was opened by German customs officers who found that it contained twenty two packages of herbal cannabis. They contacted their Scottish counterparts and a German customs officer then accompanied the flight from Frankfurt to Edinburgh. On 23 April 2002 customs officers at Edinburgh Airport stopped the appellant when he was in possession of the suitcase. The packages weighed 22.7kgs. According to expert police officers the value of the drugs was between £25,000 and £66,000, depending on the quantities in which they were sold. The sentencing judge was informed that, according to the police experts, the drugs were for onward supply and that the importation was at the mid-level.  The appellant was asked by customs officers about the suitcase. He told them that it was his and that it had been packed by a friend. It was opened in his presence. He said that some of the clothing in the suitcase belonged to him, but that other items of clothing and the packages did not. He was detained, and thereafter said that he wished to make a full statement. He told the customs officers that he had to take "the stuff" to London and meet someone at Kings Cross Station. In the course of a taped interview he said that the air fare and excess baggage costs had been paid by a friend. On 24 April 2002 the appellant appeared on petition, and was committed for further examination, bail being refused. On 1 May 2002 he was fully committed. We understand that on 18 June 2002 he gave instructions that he wished to plead guilty by way of indictment under section 76 of the Criminal Procedure (Scotland) Act 1995. This information was passed to the Crown on 20 June, and on 15 July the Crown responded to this.  The appellant is 57 years of age, and is a South African citizen with no previous convictions. On his behalf Mr Shead said he had previously been of good character. From the report by the sentencing judge we note that he was told that, having got into financial difficulties, he was offered the opportunity to cancel a debt by taking the suitcase to Edinburgh and then on to London, knowing that it contained cannabis. Mr Shead submitted that the remark by the sentencing judge in his report that cannabis had given rise to much crime and misery in the community put the matter too highly. Mr Shead pointed out that the sentencing judge had said that he was aware that the appellant had indicated his willingness to plead guilty early in the proceedings and have his case disposed of by indictment under section 76, thus avoiding the need for several witnesses from Germany to attend, and had expressed a genuine willingness to assist the relevant authorities in connection with any further enquiry. However, he had not said that he had taken these matters into account.
The appeal of Francis Robert Alderdice On 22 April 2002 the appellant pled guilty to a charge of being concerned in the supplying of cocaine to another or others, in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. He was sentenced to five years imprisonment from that date.  It appears that the appellant had got into conversation with a man in Birmingham who had asked him whether he would be prepared to deliver drugs for him. Subsequently the appellant was contacted by the man on the telephone and agreed, in return for payment of £100, to collect a package of drugs from a person in a car park in Edinburgh and deliver it by car to another person in a car park in Kirkcaldy. Acting on information supplied to them, police officers stopped his car in Queen Street, Edinburgh on 17 August 2001 after he had collected the package. A subsequent search of the car revealed a package on the front passenger seat, containing a substance which was later shown to be cocaine, with a street value of £12,600.  The appellant appeared on petition on 20 August 2001. He pleaded guilty by an indictment under section 76 of the 1995 Act, having signed a letter on 7 March 2002 in which he agreed to this form of disposal. The sentencing judge was informed that the appellant would have tendered the plea at an earlier stage but for his wish to undergo and complete a pain management course for back pain. The plea was tendered when the course was completed. Mr Martin, who appeared as his solicitor advocate, informed us that the appellant had been waiting for this course since September 2001. The course lasted for several months, and finished a few days before the plea of guilty was tendered. In this connection reference was made to a letter from the appellant's general practitioner dated 18 September 2001. Mr Martin accepted that it was an oversight that the Crown had not been informed that the appellant wished to go through the course before tendering the plea of guilty. Mr Martin also advised the sentencing judge that the appellant had given to the police the Christian name of the man in Birmingham. Mr Martin added that it was to the appellant's credit that he had pled guilty after having enjoyed his liberty on bail.  The appellant has a number of previous convictions, all in summary proceedings in the sheriff court or the district court. His only convictions for drug offences consisted of two convictions of contravention of section 5(2) of the 1971 Act in 1984 and in 1986, for which he was fined.
The appeal of William Crooks On 1 October 2002 the appellant pled guilty to two charges of being concerned in the supplying of controlled drugs to another or others in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The charges related to a single date, 20 November 2001, and to amphetamine and cannabis respectively. He was sentenced to five years and one year's imprisonment consecutively, which had effect from 1 October 2002.  On 20 November 2001 the appellant was observed by local authority highways department employees to be behaving suspiciously on the road from Lockerbie to Beattock by rummaging in bins at lay-bys and entering and emerging from adjacent woodland. Arising out of these observations police offices stopped the appellant on the A701 road at Beattock Bypass. He agreed to go to Lockerbie Police Office. Having observed that there was a black holdall with brown taped packages and a polythene bag containing herbal material in his car, police officers searched the car in his presence. As they searched the bag he said: "That's the stuff you want". When asked what it was, he replied: "Speed, I think". There were twenty packages of amphetamine, with a total street value of about £100,000. In the polythene bag were 485gms of herbal cannabis with a street value of £2,425. When the appellant was interviewed he admitted knowledge and control of the drugs in the car.  Shortly after his detention the appellant appeared on petition. On 22 August 2002 he instructed agents to indicate that he would be pleading guilty. In these circumstances he pled guilty on 1 October 2002 by means of an indictment under section 76 of the 1995 Act. By way of explanation for the time which elapsed between his appearance on petition and the date when gave these instructions Mr Crawley, who appeared on his behalf, stated that the appellant had wanted time to sort out his domestic affairs. He had become dissatisfied with the agents who were representing him, and towards the end of May 2002, when he was serving a sentence for a driving offence which arose out of the circumstances in which he was detained, he instructed new agents through whom he intimated that he intended to tender a plea of guilty. As a result an indictment under section 76 was served on 29 August 2002.  Mr Crawley said that the appellant had foolishly got involved in the carrying of drugs of a substantial quantity. However, he had been co-operative with the police, informing them that he was aware that he was transporting cannabis and amphetamine. He had got into debt and had been put under pressure to repay. He was offered the opportunity of clearing the debt by acting as a courier to deliver a package of drugs. He said that he would not have been willing to be involved in carrying class A drugs.  Mr Crawley emphasised that the appellant's conviction had related to one day and to one place. He had a number of previous convictions. However, they were all at a summary level and none was analogous. On any view consecutive sentences should not have been imposed.
The decision in these three appeals So far as concerns the nature of these offences, and the circumstances and record of the appellants, we do not consider that there is any ground for regarding the sentences as excessive although, in the case of Crooks, a total period of six years imprisonment might in all the circumstances be regarded as severe. We have, however, to consider the significance of the appellant's pleas of guilty and other related matters.  In each case the appellant pled guilty by way of an indictment under section 76, and should be given credit for the fact that by reason of his early plea or pleas of guilty it became unnecessary for there to be a trial and for witnesses to be put to the inconvenience of attending to give evidence. As between the different appellants, we would not be disposed to draw any distinction based on the precise stage at which each gave instructions for the tendering of the plea of guilty. We also take into account that from the outset the appellants made no secret of their offending and co-operated with the police, explaining how they came to be involved in acting as couriers in the transfer of controlled drugs.  At the same time we bear in mind that each appellant was, in effect, caught red-handed. The circumstances were such, in our view, that even if he had not admitted his guilt, it would not have been difficult for that to be established by the Crown.  The question then is whether, in the light of these circumstances, and applying what the court stated in its earlier opinion, the sentences which were imposed were excessive. Having regard to the considerations which we have mentioned, we consider that a discount of around 20% in respect of the plea of guilty and other related matters would have been appropriate. We recognise that in the cases of the appellants Alderdice and Crooks, the sentencing judge stated explicitly that allowance had been made for the plea of guilty.  However, we are satisfied that, when account is taken of the pleas of guilty and the other related matters in the manner indicated in the court's earlier opinion, the sentences which were imposed in the case of each of the appellants was excessive. We will quash each of the sentences and substitute a sentence of three and a half years in the case of the appellant Du Plooy, and a sentence of four and a half years imprisonment in the case of the appellants Alderdice and Crooks.
The appeal of David William O'Neil For reasons which we will set out below, we take a different course in the case of this appellant.  On 5 August 2002 the appellant pled guilty to having committed an assault to injury and the danger of life on 7 October 2001. He was sentenced to eighteen months detention in a young offenders institution.  According to the report of the sentencing sheriff, a male, whose identity was unknown to the Crown, was assaulted at a bus terminal in East Kilbride, where there was a crowd of six or seven youths, including the appellant. When the victim of the assault appeared to lunge at a youth, a juvenile assaulted him. The victim fell to the ground where the juvenile kicked him several times towards his head. The appellant then made his way through the crowd, appeared to clear a space for himself, and then kicked and stamped on the victim on his head until someone else intervened. It may be noted that the appellant pled guilty to an amended charge in which the words "repeatedly punch" were deleted. As Mr Jackson pointed out, the appellant thus pled guilty only to a single kick and a single stamp. However, it appears likely that the word "repeatedly" had been deleted by inadvertence, since, without objection from the defence, the procurator fiscal informed the sheriff that the appellant kicked and stamped on the victim's head several times. Furthermore, again without objection, the sheriff viewed a video of the scene which showed the appellant doing so, while the victim lay defenceless on the ground.  Mr Jackson pointed out that this was an unusual case in which the victim never reported the matter to the police or had even been traced. He submitted that any danger to life was more theoretical than actual. The appellant had been wearing soft shoes. There was no means of knowing the extent of any injury or danger. In these unusual circumstances the effect of the appellant's conduct should be given the most favourable interpretation.  Mr Jackson went on to point out that the appellant was sixteen years of age at the time of the incident. He was a first offender. The Social Enquiry Report showed that he came from a very supportive family. He had distanced himself from his previous companions, both before and after his sentence. The assault was out of character. Thereafter he had been liberated a few days before Christmas 2002, after serving ten weeks of his sentence. He had continued to work in full-time employment. The company by which he was employed was willing to keep him on. It was now some two and a half years since he committed the offence. During that time he had kept out of trouble. He lived at home with his parents, and had the prospect of a permanent relationship with a girlfriend. He had taken good advantage of the delay in the disposal of his appeal. While he had pled guilty only at the trial diet, that had been preceded by negotiations which began when the indictment was served, and led to the deletion to which we have referred.  Having regard to the fact that, following his release after some ten weeks in custody, the appellant kept out of trouble for a substantial period, we are satisfied, despite the serious nature of his conduct, that it is appropriate to consider an alternative disposal for this first offender. In the circumstances we consider the appropriate course is to consider a community disposal, and for that purpose to request an up-to-date social enquiry report, along with an assessment of the appellant's suitability for community service. We will accordingly continue his appeal to await the receipt of these reports.