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Cite as: [2005] ScotHC HCJAC_91, [2005] HCJAC 91

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Stafford v. Her Majesty's Advocate [2005] ScotHC HCJAC_91 (01 July 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Penrose

Lord Clarke

[2005HCJAC91]

Appeal No: XC786/04

OPINION OF THE COURT

delivered by THE LORD JUSTICE GENERAL

NOTE OF APPEAL

under section 110 of the Criminal Procedure (Scotland) Act 1995

ANTHONY JAMES STAFFORD

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shaffer, Q.C.; Bruce Short, Dundee

Respondent: Prentice, A.D.; Crown Agent

1 July 2005

[1] The appellant has appealed against concurrent sentences of eight and a half years imprisonment which were imposed on him in respect of two charges of contravening section 4(3) (b) of the Misuse of Drugs Act 1971 between 1 September 2003 and 22 March 2004, to which he had pled guilty. The charges related to heroin and cocaine. The sentencing judge indicated that had it not been for the pleas of guilty he would have imposed sentences of at least ten years imprisonment.

[2] In his report the sentencing judge sets out the narrative which was given to the court by the Advocate depute. The appellant and a co-accused were concerned in supplying a network of drug dealers in the Aberdeen area. The operation involved the transporting of significant quantities of drugs to Aberdeen from Merseyside. Although the appellant ran the Aberdeen side of the operation, he was thought to have acted as a representative of a "significant and highly organised drug dealer" in Liverpool. He stored heroin and cocaine which had been brought to Aberdeen by couriers. Transactions were carried out on the appellant's behalf by members of a family in whose house he was staying. A member of that family looked after the money which was handed over for the purchase of drugs until it was transported to Merseyside. The appellant would transport consignments of cash up to £10,000 himself, but would use couriers if greater amounts were involved.

[3] The sentencing judge observed that it might well be, as counsel for the appellant had maintained, that the appellant was not involved at the upper level of drug dealing. However, his involvement was by no means insignificant. He had been trusted to have custody of drugs of high value and take substantial sums of money from Aberdeen to Merseyside. The Aberdeen operation which the appellant superintended generated up to £11,000 per day in sales. It seemed to him that it was not inaccurate to describe him as a "major player".

[4] The appellant told the author of the social enquiry report that intimidation had led to his offending. He gave an account of having got into trouble at a nightclub in Southport some months before. As a result of a fight one of the doormen lost a tooth, and the appellant was told that he would have to pay £4,000 in compensation. He never paid the money. One night as he left a gym he was attacked and struck on the armed with a meat cleaver. He was told that he could pay the debt off if he would agree to collect cash from Aberdeen. That journey was made once a month, and he was paid £500 cash in advance. Counsel for the appellant also informed the sentencing judge that the attack on the appellant was by those who had "significant involvement" in drug dealing. The appellant did not seek treatment in his local hospital, but went to a hospital some 25 miles away. Although he was urged by those who treated him to contact the police, he refused to do so and went into hiding. Eventually those who had assaulted him caught up with him again. He was threatened that he would be attacked again. Threats were also directed at his parents.

[5] The sentencing judge was provided with two reports on the appellant by Dr Alan Coupar, chartered psychologist, dated 14 and 22 September 2004. In the first of these reports he concluded that the appellant suffered difficulties of cognitive function which were of long standing. He went on to say:

"From the present evidence, the intellectual level of Anthony Stafford is not high. It is possible therefore that he did not have the intellectual capacity to fully understand the implications of the acts he was asked to carry out. Furthermore, he was under an unusually strong emotional pressure to co-operate. He had been physically attacked in a particularly brutal assault, and he was concerned that his parents had also been threatened by the same source. The question has been raised whether he would have been more easily led into committing a crime than the ' average' person. On a balance of probability basis, my opinion is that he would be more easily influenced. For example, there is evidence from school reports that he was 'readily influenced by undesirables in the classroom'. My opinion is that his limited intellectual resources together with the unusual level of intimidation he was under played a major part in the illegal activity in which he became involved".

In the second report Dr Coupar stated that his previous conclusions had been backed by specific evidence. He added:

"That is, the client has suffered some intellectual difficulties since childhood at which time comments were made that he was easily led by other 'undesirables'. This tendency could have continued into adulthood and his limited intellectual capacity could have rendered him susceptible to being influenced by others especially when combined with threats to his life and that of his family".

[6] The sentencing judge stated that he accepted Dr Cooper's assessment of the appellant as someone who, had he been subject to a full testing, might have been assessed as falling into the category of persons having learning difficulties or persons on the borderline of that category. That was not to say that he was without abilities. He had been employed as a security guard, and was a boxer of some skill who had represented England as a light heavyweight some five years before. He appeared to have a good family background, and he enjoyed the support of his parents who appeared to be caring people. The sentencing judge said that he noted and accepted the account which the appellant had given to the author of the social enquiry report that he had been intimidated and that this intimidation had led him to his current offending. Such accounts were not uncommon, but that was not to say that when they were tendered they were other than true. The sentencing judge went on to state:

"He may have been intimidated but I took the view that the court cannot give much weight to the consideration that an accused person has been persuaded to commit criminal acts by intimidation which falls short of what would be required for a defence of coercion. It seemed to me that a policy issue was involved. The court may sympathise with the individual who finds himself in the position described by Mr Stafford. It cannot, however, condone or significantly mitigate the penalty in respect of serious criminal activity simply because it was result of pressure, even quite extreme pressure, applied by others".

[7] In the appellant's note of appeal it is maintained that the sentencing judge paid insufficient regard to the limited intellect of the appellant, which could make him more susceptible to influence than the average man. In his response to this ground of appeal the sentencing judge states in his report:

"As I have already indicated, although I accepted as accurate the account of the circumstances in which the appellant was recruited to take part in this operation, I attached little weight to the fact that he had been persuaded to participate by the intimidation that was described. I noted and had regard to what appeared in Dr Coupar's reports. However, it appeared to me that the court cannot, unless in quite special circumstances, mitigate penalty simply because the accused has been induced to commit very serious offences by a threat of violence directed towards him or his family by criminals. I did not consider that the terms of Dr Coupar's reports were such as to put the appellant into a special category in this respect".

[8] For the appellant Mr Shaffer submitted that it appeared that on grounds of policy the sentencing judge had declined to regard the intimidation suffered by the appellant as a mitigating factor, and had made no allowance for the views expressed by Dr Coupar on the ground that they did not put the appellant into a "special"- and undefined - category. Mr Shaffer made it clear that he founded on intimidation, not by itself, but in combination with the limited nature of the appellant's intellect. There was no policy that this should be ignored either in drugs cases or, as the sentencing judge appears to have thought, generally. This was quite different from seeking to found simply on weakness of character which could never excuse unacceptable behaviour.

[9] In our view the innate susceptibility of an accused to pressure or intimidation which leads to his offending is a relevant sentencing consideration. It bears on his culpability, and hence on the extent to which he should be punished for that offending. In the present case there is nothing to suggest that the sentencing judge rejected the conclusions formed by Dr Coupar. We should add that we have some difficulty reconciling his views as to the intellectual ability of the appellant with the description given to the court by the Advocate depute as to the role played by him in running the Aberdeen end of a drugs operation. However, a proof in mitigation was not suggested. The sentencing judge evidently accepted the appellant's account that his offending was brought about by the intimidation which he had described. Standing the evidence of Dr Coupar as to the appellant's susceptibility we consider that he failed to take into account a relevant consideration which was of materiality.

[10] In the circumstances we will quash the sentence imposed, and, after making a discount for the plea of guilty of a proportion similar to that selected by the sentencing judge, substitute a sentence of seven years imprisonment.