APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Menzies Lord Wheatley	[2012] HCJAC 72 Appeal No: XC818/11 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant against ADAM LYTTELL Respondent: _______

Appellant: Scullion AD; Crown Agent

Respondent: Graham; Bruce McCormack, Motherwell

24 April 2012

The conviction and sentence

[1] On 18 October 2011 at Glasgow High Court the respondent pled guilty to the following charges:

"(1) between 11 November 2010 and 11 December 2010, both dates inclusive, at the M74 Motorway near to Junction 7, Larkhall, Sandbach Services on the M6 Motorway near Manchester, Hamilton Police Office, Campbell Street, Hamilton, an Industrial Unit in Clydebank, the exact location to the Prosecutor unknown, in Castlemilk and Nitshill, both Glasgow, in Dundee and elsewhere in the United Kingdom, you ADAM LYTTEL were concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug specified in Part I of Schedule 2 to the Misuse of Drugs Act 1971 to another or others in contravention of Section 4(1) of the aftermentioned Act;

CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)

(2) between 11 November 2010 and 11 December 2010, both dates inclusive, at the M74 Motorway near to Junction 7, Larkhall, Sandbach Services on the M6 Motorway near Manchester, Hamilton Police Office, Campbell Street, Hamilton, an Industrial Unit in Clydebank, the exact location to the Prosecutor unknown, in Castlemilk and Nitshill, both Glasgow, in Dundee and elsewhere in the United Kingdom, you ADAM LYTTEL were concerned in the supplying of a controlled drug, namely Cannabis a Class B drug specified in Part II of Schedule 2 to the Misuse of Drugs Act 1971 to another or others in contravention of Section 4(1) of the aftermentioned Act;

CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

[2] The respondent was sentenced by Lord Brailsford to 3 years and 4 months' imprisonment, discounted from 5 years, on charge (1) and to eight months' imprisonment, discounted from 1 year, on charge (2), the sentences to run concurrently.

The offences

[3] On 11 December 2010 the respondent was detained at Abington Services, South Lanarkshire, on the M74. He was returning from a journey to Sandbach Services, near Preston. In his car he had £530 in cash and eleven bags of powder and three large blocks of cocaine. The three blocks were of uniform size and appearance. Two were weighed and analysed. They weighed about 1kg each and were of unusually high purity, of 75% and 64% respectively. They had a potential street value of £1,120,000. On the assumption that the third block was of like weight and composition, the total weight of the cocaine was about 3kg and its potential street value was around £1,680,000. The respondent's' house was searched. In his bedroom there were a number of tick lists.

[4] The respondent told the police that he had made this and previous trips to pick up drugs and was paid £2,000 each time. He was also responsible for storing large amounts of cocaine and cannabis in a rented industrial unit. This admission was the basis for the Crown narrative on charge (2). He said that he also collected drug debts for persons whom he refused to name.

The timing of the plea

[5] When he appeared on petition, the respondent offered to tender a plea in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) to being concerned in the supplying of the drugs on only one day. This offer was contrary to his account in his police interview. It was conditional on there being a certain narrative to the court. The Crown declined the offer.

[6] On or about 8 September 2011 the indictment was served. It appears that the defence thereupon raised with the Crown questions regarding the purity of the cocaine and the terms of a Crown narrative on which the parties could agree. In the result no plea was tendered. On 12 October 2011 there was a preliminary hearing. It was continued to 18 October. On that date the respondent pled guilty.

The respondent's criminal record

[7] The respondent has one previous conviction in 2004 for a road traffic matter. For the purposes of this appeal it is appropriate to treat him as a first offender.

The sentencing judge's report

[8] The sentencing judge reports that he had regard to the high value of the cocaine recovered. He also considered the limited duration of the libel. He had little information regarding the cannabis referred to in charge (2). The respondent was treated by the Crown as a first offender. The social enquiry report was in broadly favourable terms. The respondent appeared to have an insight into the gravity of his offending. He had acknowledged that his behaviour was wrong and foolish. The defence submission that the respondent was involved in the drug supply operation at a relatively low level was consistent with the information given to him. It was not contradicted by the Crown.

[9] In relation to the discount, it seemed to the sentencing judge that the respondent had co-operated with the police and the prosecuting authorities. He had sought to tender a plea to the charges but had been prevented from doing so primarily by difficulties that the Crown experienced in determining the value of the drugs. The sentencing judge considered that, since the two charges covered the same period, concurrent sentences were appropriate; and that a discount of one-third should be allowed.

The appeal

[10] The grounds of appeal argued by the Crown were that the sentencing judge erred (1) in imposing sentences that were unduly lenient; and (2) in allowing an excessive discount. The advocate depute submitted that the respondent was involved in various functions at a high level in the chain of distribution, and that the cocaine was considerable both in quantity and value. The respondent had delayed in pleading guilty until the second preliminary hearing and should therefore not have been given a discount of one-third. It is accepted by the Crown that it was appropriate that the sentences should be concurrent.

The submission for the respondent

[11] The potential street value of the cocaine that I have mentioned is the value given in the agreed Crown narrative. It appears that that valuation proceeded on the assumption that the cocaine would be cut to a purity of only 5% before sale. After the appeal was taken, those acting for the respondent lodged a report on the value of the cocaine. This suggested that the cocaine would have been cut to a considerably higher level of purity and therefore that the potential street value would have been much less. Counsel for the respondent asserted that by reason of his own addiction the respondent was working for others to whom he was in debt and that he derived no benefit from his actions. Counsel relied on the respondent's co-operation with the police; on the sentencing judge's acceptance that the respondent was at a relatively low level in the drug supply operation; that he was virtually a first offender who had a good work record and that he had had no knowledge of the value of the drugs. He submitted that the sentences were not unduly lenient. Since the potential value of the drugs and the terms of the Crown narrative were not agreed until the second preliminary hearing, the respondent should be held to have pled guilty at the earliest opportunity and therefore that a discount of one-third was appropriate.

Conclusions

[12] In my opinion, it is unnecessary for this court to reach a firm conclusion on the likely street value of the cocaine. The advocate depute was not disposed to dispute the contention for the respondent that in practice that value might well have been considerably less than the potential value given in the agreed narrative. For the purposes of sentencing it is sufficient that, on any view, this was a major recovery by the police. Even at half the value given in the narrative, this was a grave offence. Moreover, whatever view is taken as to the likely value of the cocaine, there can be no dispute as to the nature of the respondent's involvement. On his own account to the police, the respondent was engaged in the storage of drugs in a rented industrial unit; in the transportation of drugs to Scotland; in the distribution of them and in the collection of drug debts. On these undisputed considerations, I cannot accept the conclusion of the sentencing judge that the respondent's involvement was at a "relatively low level." In my view, the sentences imposed were unduly lenient.

[13] When the respondent was served with the indictment, it was open to him to plead guilty at once under section 76 of the 1995 Act. Instead his advisers chose to engage in negotiations with the Crown on the question of the value of the drugs and the terms of an agreed narrative in the hope, I assume, of achieving a more favourable sentencing outcome. As this court has repeatedly made clear, if the accused's advisers defer the tendering of a plea in such circumstances, the effect on the discount is inevitable (cf Gemmell v HM Adv 2011HCJAC 129, at para [424]; Graham v HM Adv 2010 SCCR 641, at para [56]; Thomson v HM Adv 2006 SCCR 265, at para [27]). In the result the value of the plea was reduced by the fact that there had to be two preliminary hearings, and the preparations for them, before the plea was tendered (cf Spence v HM Adv 2008 JC 174, at para [14]). I conclude therefore that the discount allowed by the sentencing judge was excessive. In my view, a discount of one-quarter was appropriate.

Disposal

[28] I propose to your Lordships that we should allow the appeal; quash the sentences appealed against and on both charges substitute sentences of eight years, discounted to six years, the sentences to run concurrently.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Menzies Lord Wheatley	[2012] HCJAC 72 Appeal No: XC818/11 OPINION OF LORD MENZIES in APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant against ADAM LYTTELL Respondent: _______

Appellant: Scullion AD; Crown Agent

Respondent: Graham; Bruce McCormack, Motherwell

24 April 2012

[29] I agree with the Opinion of your Lordship in the chair and have nothing to add.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Menzies Lord Wheatley	[2012] HCJAC 72 Appeal No: XC818/11 OPINION OF LORD WHEATLEY in APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant against ADAM LYTTELL Respondent: _______

Appellant: Scullion AD; Crown Agent

Respondent: Graham; Bruce McCormack, Motherwell

24 April 2012

[30] I agree with the Opinion of your Lordship in the chair and have nothing to add.