Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 45

HCA/2015/003374/XC

Lord Menzies

Lord Malcolm

OPINION OF THE COURT

delivered by LORD MENZIES

in

APPEAL AGAINST SENTENCE

by

JOHN McMAHON

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Jackson QC;  John Pryce & Co

Respondent:  M Hughes;  Crown Agent

26 April 2016

[1]        The appellant, John McMahon was convicted and sentenced at Glasgow High Court on 9 October 2015 on an indictment including several charges of contravention of provisions of the Misuse of Drugs Act, a charge of contravention of section 2 of the Road Traffic Act and two firearms charges.  He was sentenced to a total of 7 years and 10 months imprisonment in respect of the various charges, the judge having given him a discount to reflect the fact that he had offered to plead guilty at an earlier stage.

[2]        The short point that was made to us today is that the principles of comparative justice suggest that the sentence selected by the sentencing judge in respect of charge 1, being a contravention of section 4(3)(b) of the Misuse of Drugs Act in relation to diamorphine with a maximum street value of more than a £1 million was excessive because the two co-accused were sentenced to similar periods of imprisonment and their involvement was very significantly greater than the appellant’s involvement.

[3]        The appellant was sentenced in respect of charge 1 to 4 years and 8 months’ imprisonment, that being discounted from a starting point of 6 years and 6 months’ imprisonment, the discount to reflect the early plea of guilty.  The 6 months in the starting point related to the bail aggravation.  However, Mr Jackson argued before us today that this does not in itself take account of the earlier sentence imposed on Mr McMahon which comprised part of the offending in charge 1 and that sentence had a starting point of 4 years which was discounted to 3 years to reflect an early plea of guilty.  It was argued that if one adds the two starting points together, then the appellant has received a starting point sentence of 10½ years and this falls to be compared with his two co-accused, Steven Nisbet, who was described by the sentencing judge as the principal figure in the drugs operation and was conducting it whilst serving a life sentence in prison, who was sentenced to 12 years and Steven Nisbet’s brother James, who was Steven’s main henchman and who was sentenced to 10 years.  Applying the principles of comparative justice, Mr Jackson argued before us that this was not fair.  The appellant who was effectively a courier, doing the bidding of Steven and James Nisbet, received a starting point sentence greater than James Nisbet’s and only just less than Steven Nisbet’s.

[4]        We agree that in terms of the principles of comparative justice, this is unfair on the appellant.  We shall accordingly quash the sentence of 4 years and 8 months’ imprisonment in respect of charge 1 on this indictment and we do so applying the following reasoning.  The starting point should be a total of 8½ years for the appellant’s involvement in all the charge 1 matters, that is all the matters comprehended by charge 1 in this indictment and the previous indictment which resulted in his earlier sentence.  The 8½ years includes 6 months for the bail aggravation, so it is 8 years for the substantive offence and 6 months for the bail aggravation.  We deduct from that 8½ years the starting point of 4 years for the earlier sentence, which results in a starting point of 4½ years, which includes the bail aggravation of 6 months.  To that figure we apply a discount of 25% to reflect the early plea of guilty with the result that the sentence on charge 1 will be a sentence of 3 years and 4 months imprisonment, that including 4 months for the bail aggravation.  The consequence for the total period of imprisonment is that instead of 7 years and 10 months’ imprisonment which is the consequence of the sentencing judge’s sentence, the total period will be 6 years and 6 months because of the reduction in the period applicable to charge 1.  For the avoidance of doubt, we make no changes to any other aspect of the sentence, so that those charges that the trial judge made concurrent will remain concurrent, those sentences which he made consecutive will remain consecutive and they all start from the same starting point.