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Cite as: [2005] HCJAC 59, [2005] ScotHC HCJAC_59

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Her Majesty's Advocate v. McGale & Ors [2005] ScotHC HCJAC_59 (07 April 2005)

HIGH COURT OF JUSTICIARY

OPINION

THE RIGHT HONOURABLE

LORD MACFADYEN

in causa

HER MAJESTY'S ADVOCATE

against

CHRISTOPHER FRANCIS McGALE AND OTHERS

___________

Appellant: Ablet, A.D., Crown Agent

Respondent: (First Accused) Ms. Livingstone; (Second Accused) Ms. P. Collins

7 April 2005

[1] The first accused, Christopher Francis McGale, who is 22 years of age, was indicted, with two others, at the instance of the Lord Advocate on two charges of contravening the Misuse of Drugs Act 1971. The case called before me on 7 April 2005 for a preliminary hearing in terms of section 72 of the Criminal Procedure (Scotland) Act 1995 (as amended). At the preliminary hearing the first accused (to whom I shall henceforth refer as "the accused") tendered a plea of guilty to charge 1 on the indictment under certain deletions, and a plea of not guilty to charge 2. Those pleas were accepted by the Crown. Charge 1 (as amended) was a charge that on a single day in December 2004 the accused was concerned in the supplying of a small quantity of diamorphine to two undercover police officers, in contravention of section 4(3)(b) of the 1997 Act.

[2] In moving for sentence, the Advocate depute laid before me a schedule of the accused's previous convictions, and drew attention to two convictions in particular. They were:

(1) a summary conviction on 3 August 2000 at Falkirk Sheriff Court in respect of a contravention of section 4(3)(b) of the 1971 Act, in respect of which the accused was sentenced to nine months detention in a Young Offenders Institution; and

(2) a solemn conviction on 5 February 2002 at the same court in respect of a further contravention of the same section, in respect of which the accused was sentenced to 30 months detention in a Young Offenders Institution.

The Advocate depute produced the relative complaint and indictment which showed that the drug which the accused had been concerned in supplying on each of the two previous occasions was diamorphine. The current proceedings have thus resulted in the accused's third separate conviction of a class A drug trafficking offence, and consequently section 205B of the 1995 Act (as amended) applies.

[3] The issue which arose in the course of submissions related to the proper construction of sections 205 and 196 of the 1995 Act, when read together. Miss Livingstone, who appeared for the accused, drew my attention to certain passages in the annotations to the 1995 Act which appears in Renton & Brown's Criminal Procedure Legislation and which appear to suggest that in no circumstances could a person who pled guilty to a third class A drug trafficking offence be sentenced to less than 80% of seven years imprisonment or detention. She submitted that that was an erroneous view of the legislation. She submitted that the accused should have the benefit both of section 205B(3) and of section 196(1).

[4] Before turning to the annotations in question, it is convenient to set out the relevant statutory provisions. I have already summarised the circumstances in which section 205B applies. There is no dispute that it applies in the present case. Section 205B(2) provides inter alia as follows:

"Subject to subsection (3) below, where the section applies the court shall sentence the person -

(a) where he has attained the age of 21 years, to a term of imprisonment of at least seven years."

[5] Subsection (3), however, provides as follows:

"The court shall not impose the sentence otherwise required by subsection (2) above where it is of the opinion that there are specific circumstances which -

(a) relate to any of the offences or to the offender; and

(b) would make that sentence unjust."

[6] Section 196 deals with cases in which an accused person has tendered a plea of guilty. Subsection (1) provides that in such a case, in determining what sentence to pass, the court shall take into account the stage in the proceedings at which the offender indicated his intention to plead guilty, and the circumstances in which that indication was given. Subsection (2) provides as follows:

"Where the court is passing sentence on an offender under section 205B(2) of this Act and that offender has pled guilty to the offence for which he is being so sentenced, the court may, after taking into account the matters mentioned in paragraphs (a) and (b) of subsection (1) above, pass a sentence of less than seven years imprisonment or, as the case may be, detention but any such sentence shall not be of a term of imprisonment or period of detention of less than five years, two hundred and nineteen days."

[7] Since one other section of the 1995 Act is mentioned in the annotations to which I am about to refer, it is convenient to take note of its terms at this stage. Section 199(2) confers a general power on the court, where it applies, and where the penalty which may be imposed in respect of a statutory offence involves imprisonment, to reduce the period of imprisonment. Subsection 3(c), however, provides that subsection (2) shall not apply "to any proceedings in which the court on conviction is under a duty to impose a sentence under... section 205B(2) of this Act."

[8] The annotations to section 196(2), at paragraph A4-414 of Renton & Brown's Criminal Procedure Legislation, contain the following passage:

"It was only after the Committee stage of the Crime and Punishment Bill that the Government moved the amendments, now found in subs. (2), to enable the High Court to mitigate the automatic minimum sentences introduced as s.205B of the 1995 Act in cases where a timeous guilty plea has been tendered. The mandatory sentence of seven years may in such circumstances be reduced to a period of not less than five years 219 days, a 20 per cent discount. Clarification of the interplay between subs.(2) [of section 196] and s.205B(3) which relates to the extent of judicial discretion in sentencing after trial is found in s.199(3)(c) below. Section 199 serves to limit the range of sentencing options available at the judge's discretion in the circumstances set out in s.205B; accordingly, it is submitted that the sentencing options specified in s.199(2) of the Act do not apply to a third conviction before the High Court for a class A drug trafficking offence - an offender has to be incarcerated for a term of imprisonment, or detention of at least five years 219 days in any such case."

[9] The annotations to section 205B, at paragraph A4-429.3, contain the following passage:

"It would appear that the judicial discretion to reduce the mandatory seven year sentence (subs.(3)) operates separately from, and not as an addition to, any discount in sentence award under s.196; in other words, that discretion cannot be invoked to reduce the sentence following a guilty plea below the statutory minimum of five years 219 days. The provision in s.205B seems intended to allow only the most limited degree of judicial discretion to depart from the mandatory sentences set out in subs.(2)".

[10] Miss Livingstone submitted that the analysis of the legislation set out in those annotations was erroneous. The Advocate depute accepted that that was so. In my opinion counsel were clearly right in those submissions.

[11] In my opinion, the plain intention of Parliament, disclosed in section 205B(2), was that in cases of a third class A drug trafficking offence the minimum sentence would ordinarily be one of seven years imprisonment or detention. It is, however, equally clear that Parliament recognised that there might be circumstances in which it was not appropriate to impose a sentence of seven years imprisonment or detention or more for such an offence. Parliament therefore provided for such cases by prohibiting the court ("shall not impose") from imposing the sentence required by subsection (2) if it is of opinion that certain conditions are satisfied. These conditions are that there are specific circumstances which "(a) relate to any of the offences or to the offender; and (b) would make that sentence unjust". It should be noted that if the court is of opinion that these conditions are satisfied it is prohibited from passing the sentence otherwise required by subsection (2), but is given no other guidance as to the sentence it should impose. In that situation, the court must approach the selection of sentence in the ordinary way, unaffected by section 205B(2). It is to be noted that there is nothing in section 205B(3) to suggest that it applies only after trial. The suggestion to the contrary in the annotation at paragraph A4-414 is in my view unwarranted. Nor is there anything in section 205B(3) to suggest that its scope is limited by section 196(2).

[12] Section 196(1) directs the court, where there has been a plea of guilty, to take account of the stage at which and circumstances in which the offender indicated his intention to plead guilty. If that subsection and section 205B(2) had stood together with nothing more, there would have been a difficulty in operating the former in a case to which the latter applied. It was for that reason that section 196(2) was enacted. It is crucially important to note that section 196(2) applies only where the court is passing sentence under section 205B(2). It does not apply to every case to which section 205B applies, as defined in section 205B(1). In a case in which the section 205B(3) criteria are satisfied, the court is prohibited from imposing the sentence otherwise required by subsection (2). In sentencing in such a case, the court is therefore not doing the thing which renders section 196(2) applicable. The purpose of section 196(2) is to permit a discount for an early plea to reduce what is otherwise the section 205B(2) minimum sentence of seven years imprisonment or detention. In addition to permitting such a discount, it limits its extent. If the sentence under section 205B(2) is seven years, the discount cannot be more than 20%. Section 196(2) has, however, no role to play, and in its terms does not claim that it has any role to play, where the sentencing court is satisfied that the subsection (3) criteria are satisfied.

[13] Section 199(3) has, in my opinion, no bearing on the matter. It excludes the power to reduce the period of imprisonment where the court is under a duty to impose a sentence under section 205B(2). But when satisfied of the subsection (3) criteria the court is under no such duty; on the contrary it is expressly directed that it must not impose the sentence which would otherwise be required by section 205B(2).

[14] In the result, I am of opinion that if the accused can satisfy me that there are specific circumstances which relate to the current offence or either of the earlier class A drug trafficking offences or to the accused, and would make a sentence of seven years imprisonment unjust, I am directed by section 205B(3) not to impose the sentence that would be required under section 205B(2). The sentence which ought to be imposed then falls to be assessed in the ordinary way and there is no minimum sentence. There is no difficulty, in that situation, in taking account under section 196(1) of the stage at which and circumstances in which the accused's intention to plead guilty was indicated. The discount is not limited to 20%. Nor is there any difficulty in making appropriate allowance under section 210 for time spent on remand.

[15] Although I have heard a full plea in mitigation from Miss Livingstone, and although I am not under any statutory obligation to obtain a Social Enquiry Report, I propose to reserve my decision on whether I am satisfied that the section 205B(3) criteria are met in this case, and the determination of the sentence to be imposed, until I have obtained such a report. I have therefore continued the case until 28 April 2005 for that purpose.