APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Menzies Lord Wheatley	[2012] HCJAC 73 Appeal No: XC738/11 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against GAVIN McFADYEN Respondent: _______

Appellant: Scullion AD; Crown Agent

Respondent: Jackson QC; Livingstone Brown, Glasgow

24 April 2012

The conviction and sentence

[1] On 19 October 2011 at Glasgow High Court, the respondent pled guilty under section 76 of the Criminal Procedure (Scotland) Act 1995 to the following charges:

"(1) between 7 October 2008 and 17 October 2008, both dates inclusive, at Wardie Road, Glasgow, Hazel Road, Cumbernauld, 18a Shelley Gardens, B & Q car park, Kings Cross Road, M90 Road, Kings Cross Road, Lawton Street, Shelley Gardens, all Dundee, and elsewhere in Scotland, the exact locations being to the Prosecutor unknown, you Gavin McFadyen while acting along with Janice Marshall, Kevin Andrew McKell and Gary Alexander Duncan, all c/o Tayside Police, Dundee, were concerned in the supply of a controlled drug, namely Cannabis Resin, 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); and

(2) on 26 March 2009 at ASDA superstore car park at Monument Drive, Robroyston, Glasgow, A90 road, Bullionfield and 62 Graham Court, both Dundee and elsewhere in Scotland, the exact locations being to the prosecutor unknown, you Gavin McFadyen, while acting along with Michael George Cairns, c/o Tayside Police, Dundee, 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 mentioned Act; contrary to the Misuse of Drugs Act 1971, Section 4(3)(b)."

[2] The respondent was sentenced by Lord Brailsford to two years imprisonment, discounted from three years, on charge (1) and to four years imprisonment, discounted from six years, on charge (2), the sentences to run concurrently.

The offences

Charge (1)

[3] On 14 October 2008 the respondent and Janice Marshall were seen together within a shop at Wardie Road, Glasgow. Shortly after, Marshall entered a blue Volkswagen Golf.

[5] On 15 October 2008, Marshall drove in a Renault Megane to a B & Q car park at Kings Cross Road, Dundee. She parked next to a white Mazda. Thereafter the cars were driven in convoy to Lawton Street, Dundee. When they arrived there, Kevin McKell went over to the Megane and transferred three bags from the boot of it to the boot of the Mazda. The Mazda was then driven to Shelley Gardens, Dundee.

[6] Later, in the early evening, Marshall parked the Volkswagen Golf in Hazel Road, Cumbernauld. Soon after, she returned with a blue carrier bag. Police officers searched the vehicle. They found 19 quarter-kilo bars of cannabis resin. In Marshall's home they found £2,450 in cash and several mobile phones. At her police interview, she said that she had been given the Volkswagen Golf by the respondent for whom she had been delivering drugs.

[7] Later still, McKell and Gary Duncan emerged from a house in Shelley Gardens, Dundee. McKell got into the white Mazda. Duncan got into a Rover. Both vehicles were then driven off in convoy to the Ardler area. McKell was then detained by police officers. The Mazda contained 50 kilograms of cannabis resin. Duncan was detained at a house in Dundee. In the house police officers found nine kilograms of cannabis resin and a mobile phone.

[8] There was evidence from the mobile phones of regular contact between the respondent and Marshall and between the respondent and Duncan. The street value of the cannabis resin was over £250,000.

Charge (2)

[9] On 26 March 2009, in the late evening, the respondent was in a black Audi estate which was parked beside a blue Ford Focus, driven by Michael Cairns, at the Asda Superstore car park, Monument Drive, Glasgow. The respondent passed a package to Cairns. Cairns then drove the Ford Focus to Bullionfield, Dundee, where he was detained by the police. In the car police officers found two packages containing a total of 1727.8 grams of cocaine. The street value was about £86,750.

The respondent's role

[10] It is accepted that the various couriers whom I have mentioned in describing these offences were acting under the organisation and direction of the respondent.

The respondent's criminal record

[11] The respondent has 19 previous convictions dating from 1990 for a variety of offences. He has been convicted of breach of the peace, theft, assault, road traffic offences, housebreaking and reset.

[12] On 7 May 1993 the respondent was given a community service order of 40 hours for possession of a controlled substance. On 27 May 1994 he was sentenced on indictment to nine months imprisonment for an offence under the Firearms Act 1968.

[13] On 6 August 2003 he was convicted in the High Court of being concerned in the supply of a controlled substance and of two offences under the Firearms Act 1968. He was sentenced on these charges to 3 years and 42 months imprisonment respectively, the sentences to run consecutively. The present offences were committed while the respondent was on licence in relation to these sentences.

[14] The respondent has also been convicted five times for breach of bail conditions.

The appeal

[15] The Crown submits that the sentencing judge erred in two respects; namely, in taking a period of only three years as his starting point on charge (1) and in ordering that the sentences should run concurrently. In the light of (a) the gravity of the offence, (b) the value of the cannabis, (c) the significant role played by the respondent and (d) the respondent's criminal record, the sentence on charge (1) was unduly lenient. Since the two sentences were to be concurrent, the respondent would in effect serve no sentence at all on charge (1). The Crown does not challenge the sentence on charge (2), nor the amount of the discount.

Submission for the respondent

[16] Counsel for the respondent relied on the factors advanced in mitigation before the sentencing judge. He submitted that the sentencing judge had carefully considered the facts and circumstances. He had reviewed all of his sentencing options and had been entitled to give weight to the mitigating factors. His decision had not been outwith the range of reasonable disposals. If lenient, it was not unduly lenient (HM Adv v Bell 1995 SCCR 244).

The sentencing judge's report

[15] The sentencing judge reports that the plea in mitigation was to the effect that the respondent had resolved his own drug addiction and had married and formed a stable family life. He had obtained employment that would be open to him on his release from prison. He had made no financial gain from his crimes. Since no notice had been served on him under the Proceeds of Crime legislation, it could be inferred that he had a relatively low level of involvement in the supply of drugs. He had committed these offences to settle debts owed to drug dealers. The sentencing judge says that the question whether to impose concurrent or consecutive sentences caused him considerable concern. He sought to apply the guidance in McDade v HM Adv (1997 SCCR 52). His view was that if the sentences were to be consecutive, the total period of imprisonment would be too high. A cumulo sentence was inappropriate since the charges concerned different categories of drugs and were committed at significantly different times. The preferable course, therefore, was to impose concurrent sentences.

[16] The sentencing judge took into account the respondent's conduct and the seriousness of the offences. In his view, the individual sentences were in line with current sentencing practice.

McDade v HM Adv

[17] In McDade v HM Adv 1997 SCCR 52 the appellant was convicted of being concerned in the supply of amphetamine with a street value of £35,000 - £40,000; and of possession of three handguns and ammunition. All of these items were found in a search of the appellant's house. It appears to have been accepted that all of these items had been given to the appellant on the previous day to store in his house for a cash payment. The appellant was sentenced to six years' imprisonment on the drugs charge and to six years' imprisonment on the firearms charges, the sentences to run consecutively. On appeal this court took the view that if the offences had stood alone they would each have merited a sentence of six years. It considered that to impose consecutive sentences of six years was excessive, but that to impose concurrent sentences was inappropriate. The court therefore quashed the two sentences and substituted a cumulo sentence of nine years (at p 54; cf Allan v HM Adv 1997 SCCR 21).

Conclusions

Charge (1)

[18] In my opinion, the sentence on charge (1) is not only lenient but is unduly so. It is clear from the agreed narrative that the respondent played a significant role in the drug distribution enterprise. He directed the efforts of the other couriers. When one takes into account the quantity and value of the cannabis, the respondent's extensive criminal record, his previous convictions for drugs offences and the fact that he committed the present offences while he was on licence from a sentence of imprisonment imposed in part for a drugs offence, it is obvious that a sentence discounted from a starting figure of only three years was inadequate. I do not agree with the sentencing judge that his sentence on this charge was in line with current sentencing practice. In my view, this charge merited a sentence of six years before discount.

Concurrent sentences

[19] The sentencing judge had three options, namely to impose a cumulo sentence on the two charges; to impose separate sentences to run concurrently or to impose separate sentences to run consecutively. In my opinion, the options of imposing a cumulo sentence or of imposing separate and concurrent sentences were not appropriate in this case, because the charges did not arise from the same course of conduct. The sentencing judge may have misconstrued McDade v HM Adv (supra). Although the charges in McDade related to offences that were separate in nature, the appellant's possession of the drugs and the firearms constituted a single act. Both groups of items were in effect in a single package.

[20] In the present case the crimes occurred in different circumstances on occasions some five months apart. In my opinion, the only option open to the sentencing judge was to impose consecutive sentences.

Disposal

[21] I propose to your Lordships that we should allow the appeal, quash the sentence on charge (1) and quash the direction that the sentences should be served concurrently; and that on charge (1) we should substitute a sentence of six years, discounted to four years for the early plea, and direct that that sentence and the sentence on charge (2) should be served consecutively.

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Menzies Lord Wheatley	[2012] HCJAC 73 Appeal No: XC738/11 OPINION OF LORD MENZIES in APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against GAVIN McFADYEN Respondent: _______

Appellant: Scullion AD; Crown Agent

Respondent: Jackson QC; Livingstone Brown, Glasgow

24 April 2012

[22] 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 73 Appeal No: XC738/11 OPINION OF LORD WHEATLEY in APPEAL AGAINST SENTENCE by HER MAJESTY'S ADVOCATE Appellant; against GAVIN McFADYEN Respondent: _______

Appellant: Scullion AD; Crown Agent

Respondent: Jackson QC; Livingstone Brown, Glasgow

24 April 2012

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