APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Abernethy Lord Philip Lord Wheatley |
[2006]
HCJAC60
Appeal Nos: XC702/04, XC701/04, XC680/04 and XC674/04 OPINION OF THE COURTdelivered by LORD
ABERNETHY in APPEALS AGAINST SENTENCE by (1) JOSEPH WRIGHT (2) KEVIN CONNOLLY (3) JOHN WALLACE and (4) ROBERT CAMPBELL Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act (Wright): I Duguid, QC et C Mitchell; Liam O'Donnell,
Act (Connolly): C Shead et M McKenzie; Balfour & Manson
Act (Wallace): A Brown et F
Farrell; Balfour
& Manson
Act (
Alt: A Graham, Advocate Depute; Crown Agent
[1] On
"(1) between
4 December 2002 and 29 December 2003, both dates inclusive, at Collina Street
and 75 Foresthall Crescent, both Glasgow, Cross Street, 10 High Street, 36
Hazel Place, the Greenside Hotel, Anderson Drive, Leslie and Falkland, all
Fife, at Littlehill Golf Club, Auchinairn Road, Sauchiehall Street, The Willow
Hotel, Renfrew Street, Tote Bookmakers, Cambridge Street, Central Station,
Gordon Street, London Road, Flat 2/2, 90 Lenzie Street, 28 Keppoch Street,
The Cairn Public House, Balornock Road, 53 Acredyke Road, Quarrywood Road,
The Dairy, 22 Quarrywood Avenue, 52 Brookfield Drive, The Forge Retail Park,
Parkhead, Stobhill Hospital, Renfield Street, all Glasgow, in motor vehicles
travelling between Glasgow, Liverpool and Manchester, 437 Walton Breck Road, 65
Queens Drive, Liverpool, Priory Hospital, Altringham, Manchester and elsewhere
in Glasgow, Fife and the United Kingdom, you ROBERT CAMPBELL, JOHN WALLACE,
JOSEPH WRIGHT, KEVIN MICHAEL CONNOLLY, PATRICIA SLAVEN and KIRSTY CAMPBELL were
concerned in the supplying of a controlled drug, namely Diamorphine, a Class A
drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or
others, including in particular to Dennis James David Carr or McLaughlin, born
6 February 1973, present whereabouts unknown, Peter Vincent Gasparini,
50 Newhaven Road, Edinburgh and David James Laidlaw McPhee, 3B Davids
Loan, Bainsford, Falkirk, in contravention of Section 4(1) of said Act:
CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);
you JOHN WALLACE did commit this offence
while on bail, having been granted bail on
and
(2) on
29 December 2003 at Baird Street Police Office, Glasgow, you JOHN WALLACE did
have in your possession a controlled drug, namely Cocaine, a Class A drug
specified in Part 1 of Schedule 2 to the aftermentioned Act, in contravention
of Section 5(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section
5(2);
you JOHN WALLACE did commit this offence
while on bail, having been granted bail on
[2] The appellants and the co-accused each
pled not guilty to the charges against them and the trial commenced. On 29 July, after there had been a trial
within a trial on the first and second day and after the evidence of a number
of witnesses had been heard in the trial itself, each of the appellants
tendered pleas of guilty to an amended charge.
[3] The appellant
Joseph Wright pled guilty in the following terms:
"on 11 and
12 July and 6 October all 2003 at Sauchiehall Street, Renfrew Street, Tote
Bookmakers, Cambridge Street, all Glasgow, in motor vehicles travelling between
Liverpool and Glasgow and elsewhere in Glasgow you JOSEPH WRIGHT were concerned
in the supplying of a controlled drug, namely Diamorphine, a Class A drug
specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or
others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971,
Section 4(3)(b)."
[4] The
appellant Kevin Connolly pled guilty in the following terms:
"on 11 and
12 July 2003 at Sauchiehall Street, The Willow Hotel, Renfrew Street, Tote Bookmakers,
Cambridge Street, all Glasgow, on a bus travelling between Liverpool and
Glasgow and elsewhere in Glasgow you KEVIN MICHAEL CONNOLLY were concerned in
the supplying of a controlled drug, namely Diamorphine, a Class A drug
specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or
others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971,
Section 4(3)(b)."
[5] The
appellant John Wallace pled guilty in the following terms:
"between 29
August 2003 and 4 September 2003, both dates inclusive, and between 22 December
2003 and 29 December 2003, both dates inclusive, at 75 Foresthall Crescent, at
Littlehill Golf Club, Auchinairn Road, London Road, Flat 2/2, 90 Lenzie Street,
53 Acredyke Road, all Glasgow, and elsewhere in Glasgow you JOHN WALLACE were
concerned in the supplying of a controlled drug, namely Diamorphine, a Class A
drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or
others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971,
Section 4(3)(b):
you JOHN WALLACE did commit this offence while on bail, having
been granted bail on
[6] The
appellant John Wallace maintained his plea of not guilty to charge 2.
[7] The
appellant Robert Campbell pled guilty in the following terms:
"between 29
August 2003 and 4 September 2003, both dates inclusive, and between 22 December
2003 and 29 December 2003, both dates inclusive, at 75 Foresthall Crescent and
Flat 2/2, 90 Lenzie Street, both Glasgow, and elsewhere in Glasgow you ROBERT
CAMPBELL were concerned in the supplying of a controlled drug, namely
Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the
aftermentioned Act, to another or others, in contravention of Section 4(1) of
said Act: CONTRARY to the Misuse of
Drugs Act 1971, Section 4(3)(b)."
[8] The two co-accused maintained
their pleas of not guilty.
[9] The
Advocate Depute accepted the pleas tendered by all of the appellants and the two co-accused.
The latter were discharged.
[10] The Advocate Depute then moved for sentence against the
appellants. At that time he gave the
sentencing judge certain personal information in respect of each of the
appellants, to which we shall return later.
[11] The following day,
"I was
advised that since November 2002 officers from the Scottish Drugs Enforcement
Agency, Liverpool Major Crime Unit and the National Crime Squad were involved
in Operation Fingertip which focused on suspected large scale dealing in
heroin. Altogether approximately 45
officers from these agencies were involved in surveillance over a period of
approximately 13 months in 108 separate surveillance operations which
involved up to 25 officers at any one time. The cost of each surveillance unit was £2,500
per time. Initially the focus of the
operation was on low level operations in
Police
officers received intelligence that Joseph Wright, would travel from
On
Prior to
the detention of Connolly, Wright was observed driving his motor car into a lane
near
The second
chapter related to events on
The third
chapter involved events surrounding
The final
chapter related to events in December 2003.
Police officers obtained information that Robert Campbell would be
concerned in the supplying of controlled drugs on
'On the day
of the arrest, the 29 December ah'd took aerial up to that flat to be fitted in
wi a TV and also look at a fridge and ah fixed the TV and then ah went in to
see the fridge and ah seen Mr Wallace and another man in the kitchen and ah
walked over to see what they were doing and ah says 'What the fuck are yous up
to ya bastards, yous'. When ah seen what
it was, it was drugs, and ah told them to get tae fuck
oot the flat and ah walked away. I just
got oot the flat because I didnae know.
I just panicked ye know.'"
[12] In view of the fact that two of the appellants, Connolly and
Wallace, had not served a custodial sentence before, it was necessary for the
judge to obtain social enquiry reports in respect of each of them. As it was desirable to sentence all the
appellants at the same time the diet was adjourned in respect of all of them
pending receipt of the two social enquiry reports.
[13] On
In respect
of Joseph Wright: 21 years imprisonment with effect from
In respect
of Kevin Connolly: 12 years
imprisonment with effect from
In respect
of John Wallace: 19 years
imprisonment with effect from
In respect
of Robert Campbell: 21 years
imprisonment with effect from
[14] Each of the appellants has appealed to this Court on the ground
that the sentence passed against him is excessive.
[15] Before dealing with each case in turn it is appropriate to make
some general observations. Looking at it
as a whole the scale of the operation in which the appellants were involved was
plainly very large. The quantity of
diamorphine recovered amounted to approximately 111/2 kgs and had a street value
of £1.15 million. There was
evidence that a further 10kgs of diamorphine with a street value of £1 million
had already been distributed. There was
thus evidence of involvement with a total of approximately 211/2 kgs of
diamorphine with a street value of £2.15 million. The judge was told that this was the third
largest seizure of diamorphine in
[16] Being concerned in the supplying of diamorphine, a Class A
drug, is a very serious offence. The
proliferation of drugs such as this is one of the great evils our present
society. It brings untold misery to
countless people. It ruins lives. It can result in death. Parliament has provided for sentences of
imprisonment up to life imprisonment for this offence. That is an indication of how seriously it is
viewed by Parliament and the courts must reflect the will of Parliament in the
sentences that they pass. For these
reasons the courts have repeatedly warned that those who take part in this
activity must expect to be dealt with severely.
[17] Any sentence, of course, is a sentence for the crime of which
the criminal has been convicted or to which he has pled guilty. He cannot be sentenced for more than that and
he should not be sentenced for less. He
may have been part of a major operation.
If he was aware that he was part of such an operation that may be a
factor which the sentencing judge can take into account when passing
sentence. But he can only be sentenced
for the part he has been convicted of or pled guilty to having played in the
operation. When a reduced plea of guilty
is offered, therefore, the Crown must exercise care in deciding whether to
accept it. If such a plea is accepted by
the Crown, the sentencing judge must also accept the fact that it is a reduced
plea and sentence accordingly. It is not
appropriate that a person who has pled guilty or has been convicted of having
played a particular, specified part in a wider operation should then be treated
as if he is responsible for the whole operation.
[18] There is, of course, no set tariff for a sentence in a case
such as this. It is a matter for the
discretion of the sentencing judge.
There are no guidelines as such for him to follow. It has not been the practice of the
[19] We turn now to the cases for each appellant in turn.
Joseph Wright
[20] The sentencing judge tells us in his report that when moving for
sentence the Advocate Depute stated that this appellant was aged 51 and lived
with his wife and 10 year old granddaughter in
[21] On
[22] In sentencing this appellant the judge made the following
comments:
"You are no stranger to the
courts. You have 29 previous convictions
involving 43 offences, although none of them are drugs offences. You have served prison sentences for offences
of dishonesty including robbery, theft by housebreaking and theft. Your role in this criminal enterprise was
significant. You were responsible for
the delivery to
[23] Before us senior counsel for the appellant
reminded us that the plea to which the appellant had pled guilty and which had
been accepted was restricted to two dates in July and one in October 2003 and
to addresses only in Glasgow (although it also included motor vehicles
travelling between Liverpool and Glasgow).
The extent of his involvement on 11 and 12 July was that he
travelled from
[24] In the course of the hearing on
18 August the judge had asked counsel for the appellant Campbell who the
people were at the top end of the distribution chain who had decided that
Campbell should continue to pay outstanding debts by becoming involved in drug
trafficking. Counsel was not able to
answer that question. Similarly the
solicitor advocate for this appellant had not been prepared to blame anyone
further up the chain of distribution. In
that situation the sentencing judge had assumed that there was no one further
up the chain and that the appellant was therefore at the top end of the chain
at the
[25] In our opinion there is force in the
submission that the appellant's activities to which he pled guilty cannot be
equated with those to which the appellant
[26] Each case must turn on its own facts and
circumstances. In respect of the offence
to which the appellant pled guilty we have no doubt that a sentence for a
substantial period of time was justified.
We are also of the opinion that this is a case in which it was
appropriate for the sentencing judge to pass sentences of an exemplary nature,
to make it clear to those who take part in operations such as this that they
must expect to be dealt with severely.
Nevertheless, we are persuaded that the sentence of 21 years
imprisonment imposed by the sentencing judge was in all the circumstances
excessive. We consider that the appropriate
sentence is 13 years imprisonment. We
shall therefore quash the sentence of 21 years imprisonment passed on this
appellant and substitute one of 13 years imprisonment. That sentence will be with effect from
[27] It only remains to record that although
the appellant pled guilty, the sentencing judge did not grant any reduction in
the sentence having regard to the fact that the plea of guilty was not offered
until after the trial commenced. No
issue with that decision was taken before us.
Kevin Connolly
[28] In his report on this appellant the
sentencing judge tells us that when moving for sentence the Advocate Depute
said that the appellant was aged 48 and lived with the former co-accused,
Patricia Slaven, in
[29] On
[30] In sentencing the appellant the judge made
the following observations:
"Although you have previous
convictions they are all for dishonesty and you have never served a custodial
sentence. Your role in this affair is
less significant than the others but it was still an essential role in the
chain of supply of controlled drugs.
Drug dealers depend upon couriers for the transportation of the
drugs. Couriers should be under no
illusion that they face heavy sentences in
[31] Before us counsel drew our attention to
the reduction in the charge to which the appellant had pled guilty. He reminded us that the sentencing judge had
noted that the appellant's role was the least significant of all the
appellants. He had not served a
custodial sentence before. He only had six previous
convictions. They were all at summary
level and all for theft by shoplifting.
They dated from between 1998 and 2001.
His role in the offence to which he had pled guilty was as a
courier. The sentencing judge had
inferred that he was more than a "mere" courier who simply transported drugs
from one place to another on one occasion and delivered them at the end of the
journey. That was because, albeit under
the direction of the appellant Wright, he had checked into a hotel when he came
to
[32] In our opinion the judge was entitled to
treat this appellant as more than a "mere" courier. His actings when he reached
John Wallace
[33] In his report on this appellant the
sentencing judge tells us that when moving for sentence the Advocate Depute
said that the appellant was aged 39. He
appeared originally on petition at
[34] On
[35] In sentencing the appellant the judge made
the following observations:
"Prior to your arrest in September
you only had a minor conviction for a non-analogous offence. I shall treat you as a first offender. Having said that, it is
clear that you played a significant role in this criminal venture. It was accepted on your behalf that you and
the first accused were equally culpable as far as this enterprise was
concerned. You collected one and a half
kilos of heroin on 4 September. Despite
being arrested and charged and released on bail, you continued to play an
active role in the distribution of heroin in
The sentence
was backdated to
[36] Before us counsel for the appellant submitted
that the sentence of 20 years imprisonment was too high a starting
point. He referred to the cases cited by
senior counsel for Wright. The judge
treated this appellant as a first offender.
His involvement was not as great as
[37] This appellant was involved in the second
and fourth chapters of this operation.
The second chapter related to events on
[38] As the judge noted, from the outset the
appellant knew that he was involved in the supplying of drugs. From the time of his detention on
Robert Campbell
[39] In his report on this appellant the
sentencing judge tells us that when moving for sentence the
Advocate Depute stated that the accused was 47, married with three children,
the oldest of whom was aged 16 and had been the former sixth accused. The appellant lived with his wife and family
at
[40] On
[41] In relation to the present offence it was stated that there was
a link between the appellant's previous conviction in June 2000 and the present
matter. As a result of that conviction
he owed money and following his release was approached and "by degrees became
more involved". The judge was advised
that he owed £2,000 to "those higher up the chain". He refused to indicate who they were. It was stated that the accused started
dealing in small amounts to pay off his debts but he became totally embroiled
in the operation. It was stated that it
was a matter of deep regret that his wife and family had been involved in
this. A plea of guilty could only be
offered when Production 231 was lodged along with a section 67 notice. This production explained the various
transactions. This was a very
complicated matter and prior to the lodging of Production 231 it had been
difficult for the appellant's advisers to identify the strength of the Crown
case. In view of the appellant's
willingness to tender a plea of guilty on the first day on the trial the judge
was invited to discount any sentence imposed.
[42] The judge noted that the ability of the appellant to obtain a
mortgage of £120,000 and a private loan of £20,000 for the purpose of
purchasing a house at a price of £215,000 suggested that the appellant was
making significant sums of money from his activities and made it improbable
that he would become involved in such an operation unwillingly because he had
to repay a debt of £2,000. In imposing
sentence upon the appellant the judge made the following observations:
"You were
clearly the ringleader in
[43] Before us counsel for appellant reminded us that the appellant
had pled guilty to the second and fourth chapters of this operation. The plea was restricted in time and was
restricted to places in
[44] It is no doubt
always possible for someone who has been concerned in the supplying of
controlled drugs to say that there was someone else higher up the chain of
distribution. It is in the nature of
such chains that that is so. But on the
information before him we are of the opinion that the sentencing judge was well
entitled to describe this appellant as "the ringleader in