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Cite as: [2005] HCJAC 135, [2005] ScotHC HCJAC_135

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Osborne

Lord MacLean

[2005HCJAC135]

Appeal No: XC145/05

OPINION OF THE COURT

delivered by LORD OSBORNE

APPEAL AGAINST SENTENCE

LEE BURGUN

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Balfour & Manson, Edinburgh

Respondent: Stewart, A.D.; Crown Agent

15 November 2005

The background
[1] The appellant, along with five other persons, Muir Macleod, Charles Blades, James McInally, Lewis Rodden and William Bennett, were indicted together in an indictment which contained three charges. Charge (1) affected all six accused persons; charge (2), brought under section 47(1) of the Criminal Law (Consolidation)(Scotland) Act 1995 and alleging having in a public place an offensive weapon, namely a sword, was brought against Lewis Rodden alone. Charge (3) also brought under the same section of the same Act, alleging having in a public place offensive weapons, namely a baseball bat, two hammers, a socket extension bar and a wrench, was brought against Muir Macleod alone.

[2] Charge (1) in the indictment took the form of an allegation that, between 1 November 2002 and 30 November 2003 at a number of places the accused persons had conspired with each other and with others to extort money and compel persons to enter into contracts with West Coast Group and WCG (Scotland) Limited for the provision of security and protection services at construction sites, building sites and business premises in Ayrshire and to take over existing contracts for the provision of security and protection services at construction sites, building sites and other premises in Ayrshire from other persons, by criminal means, namely threats, menaces, assaults, malicious damage to property, and wilful fireraising and in furtherance of said conspiracy had done a wide range of acts specified. It is fair to say that the catalogue of acts alleged to have been committed in pursuance of the conspiracy was of a very serious nature.

[3] On 27 January 2005, the appellant appeared at the High Court in Kilmarnock, along with the five other accused, when he pled guilty to certain parts of charge (1). Those parts were:

"(l)(i) On 20 May 2003 attend at a development site occupied by G & S

Homes of 63 Montgomery Road, Tarbolton at Kilmaurs Road, Knockentiber approach George Pattison, care of Strathclyde Police, Helen Street, Govan, the proprietor, make remarks of a threatening nature and place him in a state of fear and alarm;

(ii) On 20 or 21 May 2003 attend at the building site of G & S Homes at Kilmaurs Road, Knockentiber, and by means of an accelerant while acting with Alan McCormick care of Strathclyde Police, Helen Street, Govan, Glasgow set fire to a portaloo there and the fire took effect thereon and this you did wilfully;

(o)(ii) On 15 September 2003 attend at the construction site of Alexander Morton Homes at South Crescent Road, Ardrossan, conduct yourselves in a disorderly manner, shout, swear, utter threats to Gordon Wylie, care of Strathclyde Police, Helen Street, Govan, an employee of Guardwise Security and place the lieges and said Gordon Wylie in a state of fear and alarm;

(iii) On 15 September 2003 at a car park situated at Arran Place, Ardrossan, assault Gordon Wylie, care of Strathclyde Police, Helen Street, Govan, slap him on the head and kick him on the body to his injury;

(q)(ii) On 10 November 2003 repeatedly telephone Thomas Easdon and Elizabeth Easdon, the proprietors of Castle Security, 23 Blairdennon Way, Irvine, to their alarm and demand that they remove employees from construction sites; and

(iv) On 10 November 2003 repeatedly attend at a building site under the security supervision of said Castle Security at Beresford Terrace, Ayr, place signs on fences at said site purporting to show that said site was under the security supervision of West Coast Group."

The appellant's pleas of not guilty to the remaining charges on the indictment were accepted by the Advocate depute. The accused Muir Macleod pled guilty to certain parts of charge (1) on the indictment in similar terms to those just described and also guilty to charge (3), to the extent that he accepted guilt of the allegation that on 15 September 2003 at a car park at Arran Place, Ardrossan he did, without lawful authority or reasonable excuse, have with him in a public place an offensive weapon, namely a baseball bat, contrary to the Criminal Law (Consolidation)(Scotland) Act 1995, section 47(1). His pleas were also accepted by the Advocate depute.

[4] The sentencing judge was informed that the appellant had no previous convictions. It was explained to him by the Advocate depute that the background to the offences was intense rivalry between companies seeking to provide security services to the building and construction industry and to other businesses in the west of Scotland. The appellant and each of his co-accused had been employed by, or associated with, a company called West Coast Group, a security company based in St. Cuthbert's Business Centre, Maybole. It was a division of West Coast Group (Scotland) Limited which had its headquarters in Kirkintilloch. In relation to charge (1)(l)(i) and (ii) the sentencing judge was informed that the complainer, George Pattison, was the proprietor of a small construction company, G & H Homes. In May 2003, that company occupied a former scrapyard site in Kilmaurs Road, Knockentiber. The company intended to erect 16 houses there. By 20 May 2003, the site had been cleared and prepared for building. On site there was a steel container with equipment and a portaloo. On that date Mr. Pattison was alone on the site when he noticed a black Mercedes saloon car with three occupants arriving at the site. The appellant and the co-accused Muir Macleod alighted from the vehicle and approached him. They introduced themselves as representatives of West Coast Group and gave Mr. Pattison a business card which contained only the company's details, but no details of any individual. They told Mr. Pattison that West Coast Group was taking over all security in Ayrshire, but he replied that he used another company called A & G Security. They enquired of Mr. Pattison what rates he paid for his present security services and offered to provide security for him at a lower rate, but he said that he was content with the existing arrangements and was not interested in their offer. One of the two men then said to Mr. Pattison that he should be careful with the portaloo because "the gypos in the area have a habit of stealing them". The content and tone of the remark alarmed Mr. Pattison because he took it as a veiled threat that something would be done to his site. The two men got back into the Mercedes saloon car and drove off. Mr. Pattison was sufficiently concerned that he telephoned the owner of A & G Security immediately after the men had left the site. Because work on the site was at an early stage, there was not a permanent security presence there, but, as a result of the telephone call from Mr. Pattison it was agreed that A & G Security would arrange to do "drive-by checks" at night time. That same night, or early the following morning, one Alan McCormick received a telephone call from a person known to him as an associate of the appellant and Muir Macleod. He was instructed to go and set fire to something on the site at Knockentiber. He went to a garage in Monkton and purchased petrol in a container and thereafter travelled to the site. He scaled a wall, poured petrol over the portaloo and set fire to it, thereafter making good his escape. A few days later he was contacted by telephone and instructed to go to a rendezvous at a location in Ayrshire. He drove there and met the appellant and the co-accused Muir Macleod. Macleod paid him £50 in cash for carrying out the fireraising activity. As a result of the fire, the unit was destroyed and a replacement was purchased at a cost of £1,250. From the following night onwards, G & S Homes required a full time guard on site from 7 p.m. until 7 a.m. on each day of the week. This involved additional expense to the company, but it was not possible to quantify that because, at some stage of the construction process, they would, in any event, have required such security.

[5] Turning to the circumstances of charge (1)(o)(ii) and (iii), the Advocate depute informed the sentencing judge that both of the offences occurred on 15 September 2003. Alexander Morton Homes (Scotland) Limited was a small company run by James and Alexander Benson, who were brothers. In September 2003, the company was involved in two developments in Ardrossan. On one site the company was constructing detached dwellinghouses, whereas at another site the company was renovating the former Ingledean Hotel in Ardrossan. Security for both sites was provided by Guardwise Security and the employee of Guardwise Security who was responsible for supervising the security arrangements at both sites, was Gordon Wylie. Since February 2002, the Benson brothers had been obtaining security services from different companies, but security was always under the management of Mr. Wylie. They always used the company for whom he was working, because they had confidence in him. Early in August 2003, each of the Benson brothers received "cold calls" from representatives of West Coast Group, asking about the security arrangements for Alexander Morton Homes (Scotland) Limited and enquiring if any work was available. The Benson brothers replied to the effect that they had satisfactory arrangements in place for security. Representatives of West Coast Group called at the site on three separate occasions, namely on 13 August, 8 September and 11 September 2003 and on each occasion a sales pitch was put to the Benson brothers. On each occasion, the Benson brothers fobbed them off by saying that the existing arrangements were "all right". However, they indicated that there might be something in the future which West Coast Group could do and they promised to bring up the West Coast offer at a forthcoming board meeting, although in fact this was never done. James Benson became concerned about the possibility of potential difficulties arising between different security companies and although, by that time, there had only been sales pitches, he contacted the police. An arrangement was made that the police would fit an alarm system at the site operated by Alexander Morton Homes (Scotland) Limited at South Crescent Road, Ardrossan. This site was the site of the former Ingledean Hotel. The alarm system would enable the police to be summoned in the event of any difficulties.

[6] On 15 September 2003, C.I.D. officers came on site to conduct a test of the system just mentioned with the assistance of James Benson. The police officers got into an unmarked police vehicle and drove away from the site for the purposes of conducting the test. At that stage, two Mercedes vehicles arrived on the construction site. The first was a dark coloured Mercedes saloon, driven by Muir Macleod and occupied by the appellant and another man. The second vehicle was a Mercedes four-wheel drive, driven by Lewis Rodden, in which William Bennett and James McInally were passengers. At almost the same time as their arrival, Gordon Wylie walked onto the site with Alexander Benson. As they did so, all six occupants of the vehicles alighted. Voices were raised and abusive shouts were directed at Gordon Wylie by the group of men. Amidst the shouting and swearing, Mr. Wylie and Mr. Benson realised that an accusation was being made that Mr. Wylie, or someone from his company, had damaged a vehicle on a site guarded by West Coast Group. This was denied strenuously by Mr. Wylie at the time and was still denied by him. Mr. Benson was concerned at the scene and said that he wanted everyone of the site. Mr. Wylie indicated that he would leave the site and discuss matters with the men from West Coast Group. He was embarrassed at the disturbance in front of his employers. He drove off in his van, but one of the six men got into the van with him. The other five followed the van in the two vehicles. Mr. Wylie was becoming concerned for his safety at this time and drove to a car park at Arran Place, Ardrossan. This was an open space close to the sea front. The two police officers in the unmarked police vehicle observed the convoy driving away from the site. They were suspicious and decided to follow the vehicles. They summoned assistance from another unmarked police vehicle in the area and were joined by it. They followed the convoy to the car park at Arran Place. At the car park, the two Mercedes vehicles parked close to the van and everybody, including Mr. Wylie, got out of the vehicles. When he had got out of his van, he was standing with his back to one of the Mercedes vehicles. He was surrounded by all six men who were shouting at him. He became apprehensive that violence would follow. While he was standing there, James McInally stepped in front of him and slapped him on the mouth and thereafter kicked him on the left shin. McInally was wearing workman's boots which had steel toe caps. Mr. Wylie took a conscious decision not to retaliate in case something worse happened. At that stage, the two police vehicles drove up and stopped at the Mercedes vehicles and Mr. Wylie's van. The police officers had witnessed the assault. It was clear that Mr. Wylie was bleeding from an injury to his left shin. The officers detained all of the six men and attempted to provide first aid for Mr. Wylie.

[7] Mr. Wylie was taken to the Accident and Emergency Department at Crosshouse Hospital, where he required six stitches to his left shin. All of the men from the Mercedes vehicles, including the appellant, were conveyed to Saltcoats Police Station. The Mercedes vehicles were also taken there and searched by police officers. On the rear seat of the four-by-four vehicle driven by Lewis Rodden, the officers saw a sword lying in plain view. They took possession of it. The sword was an ornamental sword of a kind described as a Samurai sword. In the boot of the Mercedes saloon car driven by Muir Macleod, police recovered a baseball bat.

[8] Turning to the circumstances of charge (1)(q)(ii) and (iv), the advocate depute informed the sentencing judge that these were essentially charges of breach of the peace in the form of intimidation. Thomas Easdon and his wife, Elizabeth, owned and operated Castle Security based in Irvine. In November 2003 they employed nine guards at six different sites, scattered around Ayrshire. In August 2003, Mr. Easdon had been contacted by representatives of West Coast Group who expressed an interest in purchasing Castle Security's business. Early in September 2003 he had met representatives of West Coast Group, including the appellant and the co-accused Muir Macleod, at a fast food restaurant to discuss the proposals to be made by West Coast Group. It transpired that the proposal was to make Castle Security a part of or subdivision of West Coast Group. Mr. Easdon was not impressed by the proposal and he wrote to West Coast Group, rejecting the offer and declining any further meetings to discuss the matter. In September 2003, Castle Security secured a contract to guard a site in Beresford Terrace, Ayr, operated by Reigart. On 10 November 2003 Mr. Easdon was working at home in the morning when he received a telephone call on his mobile phone from West Coast Group. He recognised the voice as that of the appellant, who had a distinctive accent and who had been present at the September meeting. The appellant told Mr. Easdon to get off the Beresford Terrace site, because West Coast Group had the contract with Reigart to provide security. Mr. Easdon replied that his company had the contract for Beresford Terrace and he suggested that the appellant should talk to Reigart. At that point, the co-accused Muir Macleod came on the telephone and told Mr. Easdon that the site was their site and to get his men off it. He then said "We do all the Reigart work. You don't any more." Voices were raised at both ends of the telephone and Mr. Easdon terminated the call. While no specific threats were made, Mr. Easdon, who had had a triple by-pass operation, described their manner as demanding and intimidating. He was agitated at the end of the call. Shortly afterwards, the telephone rang again, but Mrs. Easdon answered it because Mr. Easdon was in such an agitated state. The co-accused, Muir Macleod, was on the line on this occasion, asking to speak to her husband, but she said that he had gone out. Fifteen minutes later she answered a further telephone call. This time it was the appellant who spoke to her to tell her that Castle Security signs had been taken down at Beresford Terrace and that the West Coast Group guard would be on site from 4.30 p.m. that day. At the end of that call she telephoned the police and reported the matter. At 5.45 p.m. Mr. Easdon drove to the Beresford Terrace site and found Castle Security signs had been removed and several West Coast Group security signs erected on the fencing around the site. He removed them and handed them to the police. Subsequently, he and his wife identified the appellant and the co-accused Muir Macleod as the people whom they had met in September and to whom they had spoken on the telephone.

[9] As a result of what they had been told by Mrs. Easdon, C.I.D. officers attended on 10 November 2003 at about 4.30 p.m. at the Beresford Terrace site. The appellant and the co-accused, Muir Macleod, were found in a vehicle at a nearby car park and were detained. At interview, Macleod admitted putting up the West Coast signs but explained that he thought that West Coast Group had the contract for the site. He was unable to tell the police who had given him that information or what had caused him to have that belief. He said that he had cancelled the attendance of the West Coast Group guard shortly before the arrival of the police. At the same time he told police that he had been aware of his mistake for some time that day. In these circumstances, his actions in erecting the signs and being in a car nearby appeared inexplicable. At interview, the appellant stated that he was a consultant to West Coast Group.

[10] On 27 January 2005 the sentencing judge deferred sentence until 18 February 2005 for the purpose of obtaining a social enquiry report and the appellant was remanded in custody. On this latter date the Advocate depute addressed the sentencing judge further, because counsel for the co-accused, Muir Macleod, had taken issue with some of his narrative and, otherwise it might have been necessary to have had a proof in mitigation. Further enquiries had been made since the last hearing and the Advocate depute provided a more detailed account of what had occurred on 15 September 2003 in relation to charge (1)(o)(ii) and (iii). The Advocate depute stated that, although the last visit to the site had been on 11 September 2003, there had been a further contact by telephone some days before 15 September 2003, asking the Benson brothers for business. The Benson brothers had expected someone from West Coast Group to call again at the site on 15 September, but precise details were not clear. Nevertheless, West Coast Group had not been hired by Alexander Morton Homes (Scotland) Limited. Accordingly, on 14 September, one of the Benson brothers contacted Mr. Wylie and asked if he could be on the site on 15 September 2003. The purpose of this was to enable the Benson brothers to discuss the general arrangements with Mr. Wylie, but also to show West Coast Group that they already had security. On 15 September 2003 six individuals from West Coast Group had appeared in two vehicles and had immediately begun shouting and making allegations about Mr. Wylie. James Benson had accepted that he wanted everybody off the site and said words to the effect of "Would you go off and sort this out between you". The reason for his doing so was that, having heard the accusations being made against Mr. Wylie, he wanted everybody to leave his site and have their row somewhere else. The Benson brothers had confirmed that at no time were West Coast Group promised the security contract for Ingledean Hotel and at no time were they hired to guard that site. Equally, as new sites became available, the Benson brothers looked at the security requirements and, although Mr. Wylie had always been responsible for such requirements in the past, it would not have automatically followed that he would have been responsible for all future sites. Subsequently, security for their sites, including Ingledean, was transferred to another company unconnected with Mr. Wylie, or the West Coast Group. One reason for that was the trouble which had occurred on 15 September 2003.

[11] It should be recorded that, following his hearing of a plea in mitigation on behalf of the appellant, the sentencing judge imposed a sentence of 4 years imprisonment, ordered to run from 27 January 2005. He explains in his report that he considered that an appropriate sentence would have been 6 years imprisonment, but for the plea of guilty. In respect of that plea he accorded to the appellant a discount of one third. The sentencing judge explains in his report to this court that he did not think that any distinction should be drawn between the appellant and Muir Macleod in determining the appropriate sentence for the offences. He states that, although Macleod had previous convictions, they were not analogous and they were more than 20 years old. He goes on to say that he considered the only distinction between the appellant and Macleod related to the discount applicable. He states that, in Macleod's case he restricted the discount because of his involvement in another offence which would have attracted a consecutive sentence. We take that to be a reference to the offence to which charge (3) in the indictment relates. No such issue arose in the case of the appellant. The sentencing judge states that, in the case of Muir Macleod, he imposed a sentence of 5 years imprisonment. However, that belief is not confirmed by the minutes of the proceedings available to us, which bear to show that a sentence of 4 years imprisonment was imposed in respect of those parts of charge (1) to which Macleod pled guilty and 3 years imprisonment in respect of charge (3), both said periods to commence from 27 January 2005. It should be recorded that the sentence imposed on Muir Macleod is also under appeal.

The submissions
[12] Counsel for the appellant contended that the sentence imposed upon his client was excessive. He explained that the appellant had pled guilty to certain parts of charge (1) in the same terms as had Muir Macleod. Macleod had pled guilty to an amended version of charge (3) also. The personal circumstances of the appellant differed from those of Macleod in respect that the appellant had been a first offender, whereas Macleod had not. The appellant was married with children and, prior to his involvement in the present matter, had been a hard-working man. He had become involved in the activities of West Coast Group as a consultant in the hope of obtaining future employment. It was emphasised that the original libel faced by the appellant was very extensive, but the extent of his plea of guilty was, by comparison, very limited. No issue was taken with the discount accorded to the appellant by the sentencing judge in respect of that plea.

[13] Counsel for the appellant explained to the court that, in addition to the sentencing judge's report, a transcript of the proceedings had been obtained, at the request of this court. He drew our attention to the remarks of the sentencing judge between pages 168 and 173, where he dealt with the circumstances of the offences and the position of Muir Macleod and the appellant. He stated that, in this passage, the sentencing judge had commented upon the problems caused in the United Kingdom by the involvement of criminals in firms providing security at construction sites and elsewhere. He went on to speak of credit being due to the Mirror Group newspapers, which had drawn the public's attention to this problem in Scotland. The sentencing judge had commented that the crimes with which he was dealing were reminiscent of the activities of organised crime in the United States of America in the last century. He had then stated that he considered that, if any of the accused had been convicted of the crime of conspiracy, or even of a significant number of the incidents specified in charge (1) of the indictment, which, of course, they had not, in his opinion, the appropriate sentence would have been in "double figures", even for first offenders.

[14] Counsel for the appellant also drew our attention to the sentencing judge's treatment of the case of Muir Macleod, which is dealt with between pages 171 and 173 of the transcript. He submitted that the sentencing judge's treatment of the position of Macleod was difficult to follow. The sentence which he had selected in the case of Muir Macleod was said to be one of 5 years imprisonment. It was not clear how the sentencing judge had approached the matter of discount for the plea of guilty in the case of Macleod. He had appeared to have conflated the issue of discount with the question of whether the sentences imposed in relation to the offences with which he was dealing should be consecutive or concurrent. What he had said about that at page 172 was apparently not consistent with what he had said as regards his view in relation to the separate sentences for the offences to which Macleod had pled guilty. The sentencing judge's treatment of the case of Muir Macleod had created problems for this court in considering comparative justice as it might operate between Muir Macleod and the appellant. There was the further problem of the disparity between the judge's belief in the sentence which he had imposed and the record of the proceedings kept in the court minutes. Counsel for the appellant also submitted that the circumstances showed that the appellant's involvement was at a lower level than that of Muir Macleod. The appellant had been introduced to work with West Coast Group through a family connection with Muir Macleod.

[15] The gravamen of the appellant's submissions was that the sentencing judge had distracted himself by a consideration of matters with which he was not concerned, when sentencing the appellant. In particular he had expatiated upon evils in other parts of the world arising from competition in the security industry. The fact was that the appellant had pled guilty to a very limited part of charge (1). In particular, he was not involved in any conspiracy of the kind alleged there. Inexplicably, the sentencing judge had contemplated the sentence which he might have imposed if any of the accused had been convicted of the crime of conspiracy, or a significant number of the incidents specified in charge (1), of which they were not. The sentencing judge's concern with those matters appeared to have deflected him from a consideration of the offences with which he was actually dealing.

Decision
[16] Many of the submissions made on behalf of the appellant involved an endeavour to show that comparative justice had not been done as between Muir Macleod and the appellant. There were certain difficulties attached to that exercise, as counsel for the appellant recognised. In the first place, there is, unfortunately, a disparity between the sentencing judge's own view of the sentence which he selected in the case of Muir Macleod and the record of his sentencing in the court minutes, as has been explained. Furthermore, we find insuperable difficulty in understanding exactly what the sentencing judge was saying at pages 171 to 173 of the transcript in relation to the co-accused Muir Macleod. He appears to say that, in relation to those parts of charge (1) to which Macleod pled guilty, but for the plea, he would have imposed a sentence of 6 years imprisonment, the same starting point as he selected in the case of the appellant. He explains that, in view of Muir Macleod's plea of guilty he would restrict the sentence to one of 5 years imprisonment. He says that he took that course because of the significance of the plea of guilty to charge (3) on the part of Macleod. He states that he considered that an appropriate sentence for that offence, presumably standing alone, was one of 3 years imprisonment. He states that had it not been for the plea of guilty in the case of Macleod he would have imposed a consecutive sentence, as opposed to the concurrent sentence which he actually imposed, which would probably have been "at least 7 or towards 8 years". He then states that, in view of the plea of guilty he would make the sentence on charge (3) concurrent to that on charge (1).

[17] We do not understand the rationale of the sentencing judge. It appears to us that the issue of whether the sentences on charge (1) and on charge (3) should be consecutive or concurrent was a quite distinct one, which would have had to have been resolved according to the recognised criteria for such matters. However, the sentencing judge has treated that issue as, in some way, related to the issue of a discount for a plea of guilty, in a way which, quite frankly, we do not understand. In all these circumstances, we have come to the conclusion that the sentencing judge's treatment of Muir Macleod's case, which, in any event, is the subject of an appeal, can be of no assistance to us in considering the appropriateness of the sentence imposed upon the appellant.

[18] Coming then to examine the sentence imposed on the appellant, we have been persuaded that the sentencing judge took into account matters which appear to us to be irrelevant to the decision which he had to make. He expatiated upon the evils of aggressive competition between providers of security in other parts of the United Kingdom and the United States, which appear to us to have nothing whatsoever to do with the position of the appellant. In any event, he was not addressed by the Crown or counsel for the appellant on such alleged evils. While the background to the appellant's offences, which we have described, must plainly be taken into account in any decision as to an appropriate sentence in his case, we consider that the sentencing judge went far beyond that. Furthermore, for reasons which we do not understand, he entered upon a consideration of the completely hypothetical issue of what sentence might have been appropriate if the conspiracy charge, or a significant number of incidents specified in that charge, had been established. Conspiracy was not established, nor were what the sentencing judge calls a significant number of the incidents specified in it. In our view the sentencing judge appears to have distracted himself by consideration of this hypothetical matter from a proper consideration of the appropriate sentence in the case of the offences to which the appellant pled guilty.

[19] In these circumstances, we have come to the conclusion that the sentencing judge's exercise of his discretion in the case of the appellant's sentence was flawed and that that sentence is now a matter at large for the exercise of our discretion. Having regard to the whole circumstances of the appellant himself, his lack of previous convictions, and the limited involvement which he had in the matters averred in charge (1), we have come to the conclusion that an appropriate starting point in his case would have been one of 3 years imprisonment. There was no dispute as to the level of discount applied by the sentencing judge and thus, applying that level of discount, we reach a sentence of 2 years imprisonment, which we consider would have been appropriate. We shall accordingly quash the sentence imposed and substitute for it a sentence of 2 years imprisonment to run from 27 January 2005.