Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_49.html
Cite as: [2018] ScotHC HCJAC_49, [2018] HCJAC 49, 2018 SCCR 311, 2018 GWD 30-385

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Lord Menzies

Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2018] HCJAC 49

HCA/2018/000071/XC

HCA/2018/000092/XC

OPINION OF THE COURT

delivered by LORD MENZIES

APPEAL AGAINST SENTENCE

(1) MARK ANTHONY SIMPSON

and

(2) LEE DANIEL WALLACE

against

HER MAJESTY’S ADVOCATE

Appellants

Respondent

First Appellant: A Ogg (sol adv); Paterson Bell Solicitors for Bruce Short Solicitors, Dundee

Second Appellant: Findlater, advocate; Faculty Appeals Service for Lefevre Litigation, Aberdeen

Respondent: A Brown QC, AD; Crown Agent

6 September 2019

[1] Mark Anthony Simpson and Lee Daniel Wallace appeared for trial at the High Court

of Justiciary at Aberdeen on 13 November 2017 along with two co-accused, on an indictment

which contained inter alia charges of contravention of section 4(3)(b) of the Misuse of Drugs

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Act 1971. On 20 November 2017 both appellants tendered pleas of guilty to two charges in

the following terms:

“(001) between 1 June 2016 and 22 July 2016, both dates inclusive, at; Deer Park,

Great Northern Road; Great Northern Road; 355 Hilton Drive; 20 Hutcheon Court,

all Aberdeen and elsewhere you ... MARK ANTHONY SIMPSON, STEVEN VIDGEN

and LEE DANIEL WALLACE 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);

and it will be proved in terms of Section 29 of the Criminal Justice and Licensing

(Scotland) Act 2010 that the aforesaid offence was aggravated by a connection with

serious organised crime;

and

(002) between 1 June 2016 and 22 July 2016, both dates inclusive, at; Deer Park, Great

Northern Road; Great Northern Road; 355 Hilton Drive; 20 Hutcheon Court, all

Aberdeen and elsewhere you ... MARK ANTHONY SIMPSON, STEVEN VIDGEN

and LEE DANIEL WALLACE were concerned in the supplying of a controlled drug,

namely Diamorphine, 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);

and it will be proved in terms of Section 29 of the Criminal Justice and Licensing

(Scotland) Act 2010 that the aforesaid offence was aggravated by a connection with

serious organised crime.”

[2] These pleas of guilty, and other pleas of not guilty, were accepted by the Crown.

Having obtained criminal justice social work reports, on 30 January 2018 the trial judge

sentenced the first appellant, Mark Anthony Simpson, to 8 years 6 months imprisonment

from 20 November 2017, in cumulo, in respect of charges 1 and 2 on the indictment,

12 months of which was attributable to the serious organised crime aggravations. On the

same date the trial judge sentenced the second appellant, Lee Daniel Wallace, to 6 years

6 months imprisonment from 20 November 2017, in cumulo in respect of charges 1 and 2 on

the indictment, 12 months of which was attributable to the serious organised crime

aggravations.

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[3] In his reports to this court in respect of each of the appellants the trial judge sets out

in detail the extent of the drugs operation in which the appellants were involved over the

period of approximately seven weeks contained in the charges quoted above. The upper

value of the diamorphine and crack cocaine recovered was in excess of £100,000, and there

were items of paraphernalia associated with the drugs trade which were also recovered. It is

not necessary for us to recite the full details in this opinion, because both appellants

accepted that the aggravation provided for in section 29 of the 2010 Act applied. The trial

judge went on to describe how the first appellant, Mark Anthony Simpson, was the person

who gave instructions to another man to make deliveries, and who directed the operation in

Aberdeen and gave instructions as to what others were to do in relation to the drug

activities.

[4] The trial judge in his reports indicated that this was a significant drugs operation

which was aggravated by its connection with serious organised crime. Each appellant had

pled guilty to being concerned in the supply of two class A drugs for a period of seven

weeks. From the consignments found on 22 July 2016 it was clear that a collection of drugs

was kept in one location which were then delivered on instruction to 355 Hilton Drive so

that a co-accused and the appellant Lee Wallace could then distribute them to buyers at

public places in Aberdeen. It was a sophisticated and coordinated operation involving a

network of suppliers and what were thought to be safe houses. The appellant Simpson had

pled guilty on the basis that he was the controller of this operation for the whole of the seven

week period during which he gave instructions to the co-accused and to another man as to

how the drugs were to be distributed. The appellant Wallace had pled guilty on the basis

that he was one of the people who took the drugs to the end user in various public places. It

was clear that he also lived in the property to which the drugs were delivered and made

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himself available for the delivery of the drugs. In return he was given accommodation and a

supply of both the class A drugs involved. He told the author of the social work report that

he was “paid” four times a day in drugs.

The Criminal Justice and Licensing (Scotland) Act 2010

[5] Sections 28 and 29 of the 2010 Act provide as follows:

“28. Involvement in serious organised crime

(1) A person who agrees with at least one other person to become involved in

serious organised crime commits an offence.

(2) Without limiting the generality of subsection (1), a person agrees to become

involved in serious organised crime if the person –

(a) agrees to do something (whether or not the doing of that thing would

itself constitute an offence), and

(b) knows or suspects, or ought reasonably to have known or suspected,

that the doing of that thing will enable or further the commission of

serious organised crime.

(3) For the purposes of this section and sections 29 to 31 –

‘serious organised crime’ means crime involving two or more persons acting

together for the principal purpose of committing or conspiring to commit a

serious offence or a series of serious offences,

‘serious offence’ means an indictable offence –

(a) committed with the intention of obtaining a material benefit for any

person, or

(b) which is an act of violence committed or a threat made with the

intention of obtaining such a benefit in the future, and

‘material benefit’ means a right or interest of any description in any property,

whether heritable or moveable and whether corporeal or incorporeal.

(4) A person guilty of an offence under subsection (1) is liable –

(a) on conviction on indictment, to imprisonment for a term not

exceeding 10 years or to a fine or to both,

(b) on summary conviction, to imprisonment for a term not exceeding

12 months or to a fine not exceeding the statutory maximum or to

both.

29. Offences aggravated by connection with serious organised crime

(1) This subsection applies where it is –

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(a) libelled in an indictment or specified in a complaint that an offence is

aggravated by a connection with serious organised crime, and

(b) proved that the offence is so aggravated.

(2) An offence is aggravated by a connection with serious organised crime if the

person committing the offence is motivated (wholly or partly) by the

objective of committing or conspiring to commit serious organised crime.

(3) It is immaterial whether or not in committing the offence the person in fact

enables the person or another person to commit serious organised crime.

(4) Evidence from a single source is sufficient to prove that an offence is

aggravated by a connection with serious organised crime.

(5) Where subsection (1) applies, the court must –

(a) state on conviction that the offence is aggravated by a connection with

serious organised crime,

(b) record the conviction in a way that shows that the offence was so

aggravated,

sentence, and

(d) state –

(i) where the sentence in respect of the offence is different from

that which the court would have imposed if the offence were

not so aggravated, the extent of and the reasons for that

difference, or

(ii) otherwise, the reasons for there being no such difference.”

Submissions before this court

[6] For the first appellant, Simpson, Ms Ogg submitted that the trial judge selected a

period of 7 ½ years which was then increased by 1 year to reflect the aggravation that the

offence was connected with serious organised crime. This involved an element of “double

counting” since commission of the offences inherently involved organised criminal activity

of a serious nature. The imposition of a further period of 1 year’s imprisonment was

excessive. Although section 29 of the 2010 Act required the sentencing judge to take into

account the aggravation, it also recognised that there may be circumstances where it is

inappropriate to impose a separate or increased penalty – see section 29(5)(d)(ii). Most

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drugs offences, and particularly contraventions of section 4(3)(b) of the 1971 Act, fall within

the definition of serious organised crime provided by section 28(3) of the 2010 Act. It was

not disputed that the aggravation applied in this case, and it was on this basis that the pleas

of guilty were tendered, but the circumstances which gave rise to the aggravation were the

same circumstances which constituted the offences. The trial judge’s justification for the

additional penalty, contained in paragraph [17] of his report in the Simpson appeal, relied

on circumstances already used to justify the selection of the sentence imposed for the

substantive offences, namely that the appellant was involved in directing the operation

involving the three other individuals. There were no separate or distinct circumstances

offered to justify the imposition of separate penalty. There was therefore an element of

“double counting”; the issue was what weight should be given to the aggravation when the

principal offence involved the same considerations.

[7] On behalf of the second appellant, Wallace, Mr Findlater adopted the submissions

made on behalf of the first appellant. The nature of the supplying network in this case, and

its apparent sophistication, were relevant to the fixing of sentence in respect of the

contraventions of the Misuse of Drugs Act. The trial judge in his report referred to there

being a “sophisticated and coordinated operation involving a network of suppliers and what

were thought to be safe houses”; these were factors which were relevant to the

contraventions of the 1971 Act. It was necessary, when sentencing in respect of

contraventions of section 4(3)(b) of that Act, to consider the nature of the supplying and the

circumstances in which the appellant was concerned in the supplying. These were factors

which the trial judge took into account when selecting 5 ½ years as the appropriate sentence.

[8] The trial judge stated (at paragraph [13] of his report to this court):

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“I took the view that the court should impose a significant sentence on the appellant

reflecting his role not only as a runner but as the occupier of the house to which the

drugs were brought for onward distribution. The sentence also required to reflect

the aggravation of the connection with serious organised crime. Accordingly I

imposed a cumulo sentence of 6 ½ years imprisonment which I increased from

5 ½ years due to the aggravation.”

This, it was submitted, amounted to an error of law. There was no requirement to reflect the

aggravation. The supplying of two class A drugs with two other people for profit in and of

itself triggered the aggravation. The nature of the offence itself constituted, for the purposes

of the 2010 Act, serious organised crime. That was what the appellant was sentenced for in

the selection of the sentence of 5 ½ years for the misuse of drugs offences. To add on an

extra year because of the nature of the offence was erroneous and excessive. The 2010 Act

(and in particular section 29(5)(d)) envisages the possibility that there will be no difference

to the sentence imposed even with the aggravation being present. There might be cases in

which the crime or offence was not itself inevitably within the definition of serious

organised crime – for example, an assault might properly be said to be aggravated by a

connection with serious organised crime. However, it was excessive to impose an additional

penalty for the aggravation when the principal offence itself was inevitably connected with

serious organised crime, and this element had been taken account of when reaching sentence

on the principal offence.

[9] The only authority in which the court has considered the terms of section 29 of the

2010 Act was HMA v Andrew Steven aka Walton [2017] HCJAC 7, which was a Crown appeal

on the basis of an allegedly unduly lenient sentence. The court refused the Crown appeal.

That case involved a very large number of charges, generally under the Firearms Act 1968.

The appellant was convicted of a total of about 55 charges. The trial judge took the view that

the offences represented a very serious course of criminal conduct over a lengthy period of

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time. The offences, which related to the re-commissioning and supplying of prohibited

weapons and ammunition which could be easily concealed and carried, were very grave.

The judge imposed a sentence close to the maximum in relation to each group of charges,

but did not impose that maximum because the appellant was a first offender. Almost all of

the charges had contained aggravations in terms of section 29 of the 2010 Act, but the judge

did not impose any additional penalty in relation to that, because he had taken into account

that aspect of the appellant’s offending in the sentences which he imposed on the first and

last groups. Counsel for the second appellant commended that approach to the court in the

present case.

[10] The advocate depute took no issue with the submissions made on behalf of the

appellants. He agreed that the statutory offences by their very nature triggered the

aggravation, and that it did not necessarily follow that an increase in sentence would result.

He too referred to HMA v Steven.

Discussion and decision

[11] In most, if not all, cases of being concerned in the supplying of a class A drug

contrary to the Misuse of Drugs Act 1971 section 4(3)(b) the offence will be aggravated by a

connection with serious organised crime, as that term is defined in section 28(3) of the

2010 Act. The scope and sophistication of the operation to supply such drugs, the part

played by the accused in that operation, the period over which he was concerned in that

operation, the number, type and value of the drugs in which the operation was concerned,

and perhaps other factors, are all matters which fall properly to be considered by a

sentencing judge when deciding upon the appropriate sentence to impose for such an

offence. It is clear from his careful report to us that the trial judge took into account all of

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these factors when determining what sentence should be imposed on each of the appellants

for the substantive offences to which they had pled guilty, namely 7 ½ years in respect of

Mark Simpson and 5 ½ years in respect of Lee Wallace. No issue is taken in either of these

appeals with those sentences, nor with the exercise of assessment which the trial judge

carried out in regard to them.

[12] However, with regard to each of these appellants the trial judge then went on to

increase that sentence by 1 year due to the aggravation. He set out his reasoning for doing

so in paragraph [17] of his report to us in the appeal by Mark Simpson (and in substantially

similar terms in paragraph [15] of his report in the appeal by Lee Wallace). In the Simpson

appeal he observed as follows:

“The Note of Appeal states that by increasing the sentence by one year because of the

aggravation, I applied some element of double counting. Section 29 of the 2010 Act

required me to take account of the aggravation and state the extent of, and the

reasons for, the difference in the sentence if the offence not been so aggravated. It

seemed to me that since there were 3 other people in this enterprise who had acted

together for the purpose of committing serious drug dealing offences over a period

of weeks and were directed by the appellant to carry out the distribution of these

drugs, an increase in the sentence was merited. I do not accept there was any

element of double counting.”

[13] We observe that, while section 29(5) requires the court to state that the offence was

aggravated by a connection with serious organised crime, and record the conviction in a

way that shows that the offence was so aggravated, and take the aggravation into account in

determining the appropriate sentence, there is no requirement that the sentence must be

increased because of the aggravation. Indeed, in the case of HMA v Steven to which we were

referred, the judge did not impose any additional penalty in relation to the aggravation

because he had taken into account this aspect of the offending in the sentences which he had

imposed. This approach was not criticised in the opinion of the Appeal Court, which was

delivered by the Lord Justice General.

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[14] The factors to which the trial judge referred in paragraph [17] of his report in relation

to the Simpson appeal (and in paragraph [15] in relation to the Wallace appeal) are factors

which had already been taken into account (quite properly) in the setting of the sentences

for the substantive offences before aggravation. We do not consider that they can properly

be used again to justify the imposition of a further 1 year’s imprisonment in respect of the

aggravations. There are many crimes and offences which do not, of themselves, necessarily

involve a connection with serious organised crime. For example, murders, assaults, threats,

abductions, certain firearms offences, and many other criminal activities may occur without

a connection with serious organised crime. In such cases, it seems to us very possible that an

aggravation in terms of section 29 of the 2010 Act may appropriately result in a longer

sentence than that which the court would have imposed if the offence were not so

aggravated. We do not suggest that this will necessarily or always result, but it may do so.

However, when the same features that are taken into account when setting the sentence for a

substantive offence are also taken into account in considering whether to impose a different

sentence to reflect the aggravation, it may be more difficult to justify imposing a longer

sentence to reflect the aggravation.

[15] In the present two appeals, it does not appear to us that there were any additional

factors taken into account in relation to the aggravations which had not properly been taken

into account in determining the sentences for the substantive offences. We consider that this

does indeed amount to an element of “double counting”. For these reasons, we shall quash

that part of each sentence (amounting to imprisonment for 1 year) relating to the section 29

aggravation. We shall therefore substitute a sentence of 7 years 6 months imprisonment

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from 20 November 2017 for Mark Simpson, and 5 years 6 months imprisonment from

20 November 2017 for Lee Wallace.