Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 115

HCA/2015/2229/XC

Lord Justice Clerk

Lord Brodie

Lord Matthews

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEAL AGAINST SENTENCE

by

ALEXANDER SUTHERLAND

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant: Jackson QC, Glancy; Paterson Bell (for David Kinloch & Co, Glasgow)

Respondent: R Goddard, AD; the Crown Agent

13 November 2015

Introduction

[1]        On 19 June 2015, at a continued Preliminary Hearing in the High Court at Glasgow, the appellant pled guilty to a charge which libelled that:

“(013) between 24 October 2011 and 1 May 2013, … at [various addresses in Scotland] you … [and others] were concerned in the supplying of a controlled drug namely Diamorphine, commonly known as ‘Heroin”, a Class A drug … 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); …”.

He was sentenced to 13½ years imprisonment.  This had been discounted by 25% from 18 years for the early plea.  Eight co-accused had their pleas of not guilty accepted.  The plea resolved a prosecution which would otherwise have involved a trial lasting weeks, and possibly months.

The narrative

[2]        There was a narrative agreed by the Crown and the appellant.  It must be said in limine that the content of this narrative, like many others of its type, is bedevilled by irrelevant evidential material.  No doubt for reasons of expediency, it has the air of being cut and paste from the Crown Office precognition report.  It thus contains, for example, references to the nature and extent of the police investigation and to what a particular courier, described as the “assisting offender”, is reported to have said.  It is difficult to extract what essential facts were agreed without considerable editorial effort.  That exercise having been completed, it appears that the appellant was the “director” of an organised criminal gang based in Glasgow which was concerned in the acquisition, adulteration and onward supply of heroin to associates in Edinburgh.  The supply operation ran from March 2012 until one of the appellant’s couriers was detained on 27 March 2013, in possession of 2 kilograms of heroin, which he had been due to deliver to Edinburgh.

[3]        The appellant would source what the narrative expressly describes as “’pure’ ie unadulterated” heroin in Glasgow, for which he paid between £36,000 and £42,000 per kilo.  He would arrange for this to be collected by or delivered to the courier, typically in 1 kilo amounts.  The courier would adulterate the heroin, by breaking down the pressed bricks, quadrupling the weight with adulterants, and re-pressing the powder.  In this way, 1 kilogram would become 4 kilograms.  The courier would deliver the drugs, usually in 4 kilo quantities, to Edinburgh.  The courier made ten such deliveries in the period libelled (ie 40 kilograms).  The wholesale price of such a kilo was between £12,250 and £15,000.  Thus each kilo bought by the appellant would become worth between £49,000-£60,000 – producing a profit of £7,000-£24,000 per kilo; the price paid being taken back to the appellant.  Once further adulterated and split into quantities for sale to end users at street level, the 40 kilos of heroin would ultimately have been sold for about £2.8 million.  Although it is not touched upon in the narrative, the heroin, which was found in possession of the courier had a purity of between 8 and 11%.  Assuming an unusually precise quadrupling of the bulk by the courier, the purity of the “unadulterated” heroin sourced by the appellant could be assumed to have been between 32 and 44%.

[4]        The appellant had a record which included the possession of weapons.  Of particular significance, he had a previous conviction dated March 2013 from Dumbarton High Court for concern in the supply of drugs.  This had attracted a sentence of 42 months, part of which had remained unexpired at the date of the offending.

[5]        In mitigation, the sentencing judge was asked to regard the appellant as a young man who had come from a background of “well-known extensive criminality”.  He had entered the family business.  The appellant’s involvement had been more in the nature of a director, rather than the chief executive.  His profit had been somewhere in the region of £70,000 - £240,000, rather than the millions reflected in the total theoretical value at street level.

[6]        The sentencing judge reports that he had never previously encountered a convicted person who had had access to such quantities of “unadulterated heroin”.  This placed the appellant and his associates at the highest level of the drug supply network in the United Kingdom.  He had reached that conclusion because “they must have had first access to heroin directly upon its importation into this country”.  He regarded it as important to take the opportunity of “expressing firmly the court’s, and society’s, view of the level of criminality associated with those who operate at the top end of the drug supply network and who take so much advantage of so many below them for substantial illegal financial gain”. 

[7]        In his sentencing statement the judge made a powerful reference to the extent to which the abuse of heroin had “blighted communities, robbed families of their children, destroyed lives which would otherwise have been productive and … led to an associated crime wave indulged in by users in an attempt to fund their ongoing habits”.  He drew upon his own extensive experience and sought to impose an appropriate sentence by reference to the many cases with which he had familiarity.  These included Hamill v HM Advocate 2000 GWD 13-480, which involved an 18 year sentence for concern in the supply of £1.5m of heroin, valued at street level, and McGovern v HM Advocate, unreported, 26 March 2009, in which the same judge had considered 12 years as an appropriate starting point for concern in the supply of £0.5m of heroin where he was also imposing a consecutive sentence, with a starting point of 8½ years, for a firearms offence.  The judge reports that an appeal against sentence was refused.

Submissions
[8]        There was no challenge to the level of the discount.  The appellant’s central contention was that the starting point of 18 years was too high.  It was in excess of the Definitive Guideline produced by the Sentencing Council of England and Wales.  That suggested a range of 12 – 16 years for the most serious offences.  It was incorrect both to place this case in that category, and to consider that there were aggravating factors justifying a greater headline sentence.

[9]        The sentencing judge had referred in his report to the appellant having sourced pure “unadulterated” heroin. No purity analysis had been contained within the agreed narrative.  The actual analysis had demonstrated that the heroin had not been “unadulterated”.  That word had only been used in the narrative to describe a level of purity above that existing at street level.  The sentencing judge had misunderstood that.  The appellant had not been involved in the importation of heroin.  He had sourced it in Glasgow.

[10]      A report by William Percy, a retired police officer, dated 15 October 2015, had been lodged for the appellant as support for the proposition that the sentencing judge had erred in sentencing the appellant on the basis that he and his associates were placed at the highest level of the drug supply network in the United Kingdom.  This stated that a kilo of heroin could be bought in Turkey for about £8,000.  It could be bought in the UK for between £15,000 and £22,000.  It would have a purity level of about 66%, although this could be as low as 42%.  In the UK the cheapest source was in the West Midlands of England, where purity would be about 50%.  If, as was said, the appellant had paid £36,000 or above for the heroin, he was not doing so from the “top tier of UK based drug traffickers”.  The heroin which the appellant had bought had been adulterated after importation.

[11]      The appellant also produced, for the appeal, a precognition of Detective Sergeant Kenneth Simpson, one of the potential witnesses in the prosecution.  DS Simpson said that persons in the drug trade who referred to “pure” heroin were only saying that the purity was above street level (2-15%).  In all these circumstances, the sentencing judge had sentenced on the basis of an error in relation to the appellant’s part in the drug supply chain.

[12]      The sentencing judge had failed to give sufficient weight to: the pressures upon the appellant brought about by being brought up by a criminal family; and the limited amount of profit received.  The judge appeared also to have assumed an involvement in drug supply wider than the 40 kilos sent to Edinburgh by means of the courier.

[13]      The 18 year starting point was out of kilter with similar cases.  Reference was made to a number of first instance sentences.  These were: (a) HM Advocate v Blenkinsop, unreported, 4 October 2011, Lord Doherty, when 12 years was imposed for the importation over a 2½ year period of £40m of cocaine, cannabis and amphetamine.  The offender had previously served a 4 year sentence for drug dealing in Spain; (b) HM Advocate v Donnelly, unreported, 4 April 2014, Lord Boyd, when 12 years was selected as a starting point for directing a supply of 2 kilos of heroin during an unexpired sentence by an accused with 2 analogous convictions; (c) HM Advocate v Nisbet, unreported, 9 October 2015, Lord Armstrong, when 12 years was selected for the person directing the supply over 7 months of £1m of heroin from prison.  He had been serving a life sentence for murder and the sentence was to run from the expiry of his punishment part (unspecified); (d) HM Advocate v McIntyre, unreported, 18 January 2013, Lord Boyd, where 12 years was the starting point for the supply of £300,000 (2.5kg) of heroin; (e) HM Advocate v McKenzie, unreported, 16 September 2013, Lord Matthews, where 10 years was the starting point for almost £1m of cocaine; and (f) HM Advocate v Jones, unreported, 16 August 2013, Lord Doherty, where 14 years was the starting point for playing a senior role, over 8 months in the supply of £200,000 of cocaine and 4 months in the supply of almost £0.5m of cannabis resin.  At appellate level, there was (a) Dumani v HM Advocate [2013] HCJAC 144, in which a 12 year sentence was reduced to 10 years where the appellant had been concerned in the supply of between £600,000 and £1.2m of cocaine over a 10 day period.  The cocaine had been sourced by the appellant in “relatively pure” condition and the task of turning it into pellets was “perhaps the largest cocaine processing operation ever encountered in Scotland”; and (b) HM Advocate v Carnall 1999 SCCR 904 where 10 years was selected for concern in the supply of 5 kilos (£665,000) of heroin from England to Scotland.

Respondent

[14]      The Crown submitted that the sentencing judge’s description of the appellant’s offending was correct: he had been the director of a very high level drug supply enterprise, involving a massive amount of heroin over a period of 18 months against the background of an analogous previous conviction.

[15]      The Sentencing Council Definitive Guideline provided that sentences of twenty years or above might be appropriate where the operation was on the most serious and commercial scale involving a quantity of heroin in excess of 5 kilos.  The Guideline had been applied to offenders whose primary offending occurred within Scotland as part of a wider conspiracy (R v Welsh & Ors [2014] EWCA Crim 1027).  It would be undesirable to have a significant divergence in sentencing in the different UK jurisdictions in relation to large scale drug dealing.  The sentence could not be described as excessive.  In R v O’Neill [2015] EWCA Crim 1438, 20 years was considered not to be excessive where the head of an organised crime group had been involved in the supply of 28 kilos of adulterated cocaine over 2 years.  In AG’s Reference Nos. 82 and 90 of 2014 [2015] 2 Cr App R (S) 1, sentences of 15 years were increased to 20 years for the importation of 52 kilos of cocaine with a street value of between £5m and £10m over a period of 1½ years and involving 30 trips.  In AG’s Reference No. 8 of 2015 [2015] EWCA Crim 620 a sentence of 8 years was increased to 16 years for the importation of 52 kilos of cocaine (78% pure) and 3 kilos of heroin (48%) with a total value of £11.5m.  In R v Welsh [2014] EWCA Crim 1027 sentences of between 22 and 25 years were regarded as unappealable where there was a supply of at least 23 kilos of class A drugs between criminal gangs in Liverpool and Glasgow over a period of a year.  A sentence of 22 years was selected for the possession with intent to supply 60 kilos of cocaine in R v Tourh [2009] EWCA Crim 874.  The offender had no relevant criminal record.  In Wright v HM Advocate 2006 GWD 27-604 a starting point of 22 years had been reduced to 18 on appeal where the appellant was the ringleader in Scotland of a very substantial operation processing £2.15m of heroin.  The appellant had a bad criminal record and had been on licence at the time of the offence.  In Hamill v HM Advocate (supra), 18 years was not excessive for the mastermind behind the supply of £1.5m of heroin.

Decision

[16]      The sentencing judge is a very experienced trial judge who would be relatively familiar with the nature and extent of the importation and supply routes of heroin into and around the United Kingdom.  He was told in the agreed narrative that the heroin was “’pure’ ie unadulterated”.  However, the judge would have been aware that this did not mean that the drugs would be pharmaceutically 100% diamorphine.  Given the results of the tested samples, the purity of the heroin as sourced was between 32 and 44%.  It is possible that it came into the UK in that state but, at least on the basis of Mr Percy’s report, it is marginally more likely that it underwent some adulteration en route to Glasgow.  This may have occurred if it came through the English Midlands.  Whatever may have been the true position (and presumably the appellant knows that), the judge was aware that there was no charge of importation and that the appellant had sourced the heroin in Glasgow and not abroad or in the Midlands.  It was nevertheless in a state permitting substantial re-bulking before it reached street level.

[17]      The appellant was described in the narrative as a director of the operation, from receipt in Glasgow to onward wholesale supply in Edinburgh.  Given the quantities and nature of the operation involved, any difference, between the judge’s description of the facts as “placing the appellant and his associates at the highest level of the drug supply network within the United Kingdom” and the position advanced as the reality at the appeal hearing, would have had a minimal effect in terms of sentencing.  Any error made by the judge in relation to the volume of dealing falls into the de minimis category, when the overall amounts are realised.

[18]      The sentence imposed was one which was in line with those considered by the High Court, sitting in its appellate capacity, as appropriate for persons directing large scale heroin supply networks in Scotland.  Notably, it is consistent with Wright v HM Advocate 2006 GWD 27-604, where the ringleader in Scotland of a cross border supply chain involving 21.5 kilos of heroin (valued at £2.15m at street level) was sentenced to 16 years, discounted from 18, standing a record which included (as the appellant’s does too) a previous High Court conviction for a drug offence for which he was on licence at the material time.  It is also comparable to Hamill v HM Advocate 2000 GWD 13-480, where 18 years for the mastermind of a £1.5m heroin supply chain was deemed not to be excessive.

[19]      In using these comparators, not only is it the offender’s role which is important but also the street value of the drug.  It is that value which is the prime indicator of the damage caused to society by this pernicious trade.  The dealer’s particular profit, whilst relevant, is far less significant for sentencing purposes.  It is important to note that, amongst the Class A drugs, heroin has a particularly dangerous part to play in societal terms.  It is unique and care should be taken when using precedents involving other drugs, even those in the same classification.  Such a distinction would apply to several of the first instance cases cited.  In others, there was a consecutive element to the sentences, thus producing a different but significant difference.  In yet others, the volume of dealing was lower.

[20]      Definitive Guidelines from the Sentencing Council of England and Wales often provide a useful cross check for sentences in Scotland especially where the offences are regulated, as here, by a UK statute and there are identical sentencing maxima.  They should not, however, be applied in Scotland in a rigid or mechanistic fashion, given the differences in sentencing purposes, practices and regimes between the two jurisdictions.  Suffice it to say, in this case, had the appellant been sentenced in England, it would appear that he would have received a much longer custodial term.  This is borne out by that part of the Definitive Guideline (p 4) which states that:

“Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than [5 kilos], sentences of 20 years and above may be appropriate, depending on the role of the offender.”

This policy is amply demonstrated by the sentences of 20 years or more in R v O’Neill [2015] EWCA Crim 1438, AG’s Reference Nos. 82 and 90 of 2014 [2015] 2 Cr App R (S) 1; and R v Tourh [2009] EWCA Crim 874, all being cocaine cases, and R v Welsh [2014] EWCA Crim 1027.

[21]      The appellant raised an interesting point about the effect of an offender coming from a criminally oriented family.  This may be seen as reducing moral culpability but it is a factor more than outweighed by the need to discourage endemic criminality.

[22]      It is important to remember in addition that it is the overall sentence which the court must consider.  Whilst the appellant did not, of course, challenge the discount for the early plea, that discount was a very generous one for a sentence of this length even against a background of substantial utilitarian value.  Be that as it may, the final sentence arrived at was a reasonable one in all the circumstances.  The appeal is refused.