APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Abernethy Lord Philip Lord Wheatley

[2006] HCJAC60 Appeal Nos: XC702/04, XC701/04, XC680/04 and XC674/04 OPINION OF THE COURT delivered by LORD ABERNETHY in APPEALS AGAINST SENTENCE by (1) JOSEPH WRIGHT (2) KEVIN CONNOLLY (3) JOHN WALLACE and (4) ROBERT CAMPBELL Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______

Act (Wright): I Duguid, QC et C Mitchell; Liam O'Donnell, Glasgow

Act (Connolly): C Shead et M McKenzie; Balfour & Manson

Act (Wallace): A Brown et F Farrell; Balfour & Manson

Act (Campbell): J Gilchrist et S Burns; Balfour & Manson

Alt: A Graham, Advocate Depute; Crown Agent

10 August 2006

[1] On 26 July 2004 in the High Court at Glasgow the appellants, together with two co-accused, went to trial on an indictment containing the following charges:

"(1) between 4 December 2002 and 29 December 2003, both dates inclusive, at Collina Street and 75 Foresthall Crescent, both Glasgow, Cross Street, 10 High Street, 36 Hazel Place, the Greenside Hotel, Anderson Drive, Leslie and Falkland, all Fife, at Littlehill Golf Club, Auchinairn Road, Sauchiehall Street, The Willow Hotel, Renfrew Street, Tote Bookmakers, Cambridge Street, Central Station, Gordon Street, London Road, Flat 2/2, 90 Lenzie Street, 28 Keppoch Street, The Cairn Public House, Balornock Road, 53 Acredyke Road, Quarrywood Road, The Dairy, 22 Quarrywood Avenue, 52 Brookfield Drive, The Forge Retail Park, Parkhead, Stobhill Hospital, Renfield Street, all Glasgow, in motor vehicles travelling between Glasgow, Liverpool and Manchester, 437 Walton Breck Road, 65 Queens Drive, Liverpool, Priory Hospital, Altringham, Manchester and elsewhere in Glasgow, Fife and the United Kingdom, you ROBERT CAMPBELL, JOHN WALLACE, JOSEPH WRIGHT, KEVIN MICHAEL CONNOLLY, PATRICIA SLAVEN and KIRSTY CAMPBELL were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, including in particular to Dennis James David Carr or McLaughlin, born 6 February 1973, present whereabouts unknown, Peter Vincent Gasparini, 50 Newhaven Road, Edinburgh and David James Laidlaw McPhee, 3B Davids Loan, Bainsford, Falkirk, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b);

you JOHN WALLACE did commit this offence while on bail, having been granted bail on 5 September 2003 at Glasgow Sheriff Court;

and

(2) on 29 December 2003 at Baird Street Police Office, Glasgow, you JOHN WALLACE did have in your possession a controlled drug, namely Cocaine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, in contravention of Section 5(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 5(2);

you JOHN WALLACE did commit this offence while on bail, having been granted bail on 5 September 2003 at Glasgow Sheriff Court."

[2] The appellants and the co-accused each pled not guilty to the charges against them and the trial commenced. On 29 July, after there had been a trial within a trial on the first and second day and after the evidence of a number of witnesses had been heard in the trial itself, each of the appellants tendered pleas of guilty to an amended charge.

[3] The appellant Joseph Wright pled guilty in the following terms:

"on 11 and 12 July and 6 October all 2003 at Sauchiehall Street, Renfrew Street, Tote Bookmakers, Cambridge Street, all Glasgow, in motor vehicles travelling between Liverpool and Glasgow and elsewhere in Glasgow you JOSEPH WRIGHT were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

[4] The appellant Kevin Connolly pled guilty in the following terms:

"on 11 and 12 July 2003 at Sauchiehall Street, The Willow Hotel, Renfrew Street, Tote Bookmakers, Cambridge Street, all Glasgow, on a bus travelling between Liverpool and Glasgow and elsewhere in Glasgow you KEVIN MICHAEL CONNOLLY were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

[5] The appellant John Wallace pled guilty in the following terms:

"between 29 August 2003 and 4 September 2003, both dates inclusive, and between 22 December 2003 and 29 December 2003, both dates inclusive, at 75 Foresthall Crescent, at Littlehill Golf Club, Auchinairn Road, London Road, Flat 2/2, 90 Lenzie Street, 53 Acredyke Road, all Glasgow, and elsewhere in Glasgow you JOHN WALLACE were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b):

you JOHN WALLACE did commit this offence while on bail, having been granted bail on 5 September 2003 at Glasgow Sheriff Court."

[6] The appellant John Wallace maintained his plea of not guilty to charge 2.

[7] The appellant Robert Campbell pled guilty in the following terms:

"between 29 August 2003 and 4 September 2003, both dates inclusive, and between 22 December 2003 and 29 December 2003, both dates inclusive, at 75 Foresthall Crescent and Flat 2/2, 90 Lenzie Street, both Glasgow, and elsewhere in Glasgow you ROBERT CAMPBELL were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

[8] The two co-accused maintained their pleas of not guilty.

[9] The Advocate Depute accepted the pleas tendered by all of the appellants and the two co-accused. The latter were discharged.

[10] The Advocate Depute then moved for sentence against the appellants. At that time he gave the sentencing judge certain personal information in respect of each of the appellants, to which we shall return later.

[11] The following day, 30 July 2004, the Advocate Depute gave the judge a narrative in relation to the circumstances of the offences to which the appellants had pled guilty. This narrative included reference to evidence which had been given in the trial as well as additional information. In his report the trial judge records this narrative as follows:

"I was advised that since November 2002 officers from the Scottish Drugs Enforcement Agency, Liverpool Major Crime Unit and the National Crime Squad were involved in Operation Fingertip which focused on suspected large scale dealing in heroin. Altogether approximately 45 officers from these agencies were involved in surveillance over a period of approximately 13 months in 108 separate surveillance operations which involved up to 25 officers at any one time. The cost of each surveillance unit was £2,500 per time. Initially the focus of the operation was on low level operations in Fife but attention turned to Robert Campbell as it was suspected that he was involved to a significant extent in heroin dealing. Officers suspected that Campbell and his associates had a connection with Liverpool based drug traffickers. The scale of the operation can be illustrated by the fact that the total amount of heroin recovered amounted in value to £1,150,000. In addition there was further evidence that Campbell and his associates had been involved with a further 10 kilograms of heroin with a street value of £1,000,000 which had been distributed. Thus there was physical evidence of involvement with £2.15m worth of heroin. I was advised that this was the third largest seizure in Scotland but the difference between this seizure and the two cases involving greater quantities and values is that in these two cases the heroin was intercepted thereby preventing its distribution to drug abusers. In the present case it was unfortunate that Campbell and his associates had managed to supply about £1m worth of heroin before their activities were curtailed by his detention.

Police officers received intelligence that Joseph Wright, would travel from Liverpool to Glasgow on 11 July 2003. On that date Wright was followed from Liverpool and kept under surveillance. In Glasgow he was observed meeting a person in the car park of Tesco Supermarket in Springburn. The person whom he met was seen to hand over a bag to him. The impression of the police officers observing this transaction was that the bag contained cash which was presumably payment for the drugs which featured the following day. Wright was followed from the Tesco car park to a telephone box in Ingram Street, Glasgow where he made a number of telephone calls. One of these calls was to the phone of Kevin Michael Connolly. Police enquiries revealed that the subscriber of that mobile telephone was a young girl in Liverpool who had given her telephone to Connolly's daughter. During the evening of 11 July the person who had given the package to Wright at the Tesco car park met Wright in a fast food outlet in Sauchiehall Street. Police officers suspected that Wright stayed overnight in Glasgow because his car was kept under surveillance and it remained unattended in Cambridge Street, Glasgow until the following day.

On 12 July 2003 Connolly and the former co-accused, Slaven, who was Connolly's partner, were monitored by CCTV cameras walking about the centre of Glasgow. At about 12.35pm Connolly and Slaven registered as guests at the Willow Hotel and paid £40 in cash for a double room. Connolly left the hotel later in the afternoon but the co-accused Slaven remained in the hotel room. At 2.20pm, Connolly was detained in the Tote Bookmakers, Cambridge Street, Glasgow. When he was asked if he had controlled drugs he said that he had heroin for his own use. It was noted that he had two packages in the waistband of his trousers. When he was asked what these contained he replied 'Amphetamine'. Following Connolly's detention he was taken to Stewart Street Police Station where he was searched and the packages removed from the waistband of his trousers. Apart from the two packages, Connolly was in possession of £193.20 in cash and a small package of heroin. The two packages were identified by drug squad officers as typical kilo packages of powdered drugs. When they were examined each package was found to contain two half-kilo packages. Two of the four half-kilo packages were chosen at random and, when weighed, were respectively 489.6 grams and 493 grams and when analysed, it was established that they contained diamorphine whose purity was 36%. Following the detention of Connolly police officers attended at the Willow Hotel and searched the hotel room which Connolly had occupied and in which Slaven was still present. Within a wardrobe police officers found a rucksack which was identified from CCTV film as having been in the possession of both Connolly and Slaven as they walked through the streets of Glasgow. Within the rucksack there was a brown taped package containing two smaller packages, each representing half a kilo of drugs. On analysis, these smaller packages were discovered to contain 491 grams and 490.3 grams of diamorphine with purities respectively of 35% and 36%. The rucksack also contained two further kilo packages, each containing two smaller bags. Two of the four smaller bags were selected at random and on analysis were discovered to contain 491.8 grams and 492.3 grams of heroin with purities respectively of 36% and 37%.

Prior to the detention of Connolly, Wright was observed driving his motor car into a lane near Sauchiehall Street at about 11.15am on 12 July 2003. At 11.37am Wright met Connolly in Sauchiehall Street. From the observations of police officers it appeared that Wright was giving Connolly instructions. After Connolly and Slaven went into the Willow Hotel, Wright was seen stopping his car outside the hotel and leaving it parked there for about ten minutes. Police officers followed the accused to Cambridge Street where he was seen to enter the Tote Bookmakers at 1.56pm. He left the bookmakers about five minutes later and went into a nearby public house. He returned to the bookmakers just as Connolly was entering the premises. Connolly appeared to be sweating heavily at that time. At 2.20pm Wright left the bookmakers just as police officers entered the premises and detained Connolly. Police officers observed Wright watching Connolly's detention and subsequent transport from the bookmaker's premises in a police vehicle. Five minutes later Wright was seen walking towards the Willow Hotel but on seeing police activity there he went to a telephone box in Sauchiehall Street and made a number of telephone calls. Thereafter he hailed a taxi which took him to a supermarket in Springburn Road. He made a number of telephone calls from his mobile phone and from the payphone at the supermarket. Police officers could see Wright. He looked 'panicked' and he was described as 'sweating profusely'. He was followed back to Cambridge Street at 3.30pm. He made a number of telephone calls from a telephone box and from his mobile phone. Police officers described his manner as "frantic". I was advised that people involved in drug trafficking at this level were accustomed to using different phones, both mobile and public telephones in an effort to cover their tracks. The total amount of heroin recovered on this occasion was five kilograms which had a value of £500,000.

The second chapter related to events on 4 September 2003. On 2 September 2003 police officers received confidential information that John Wallace, an associate of Campbell, might be involved in a forthcoming transaction. On that date Wallace was seen to take a taxi from his home to Littlehill Golf Club, which had been the focus of much of the police surveillance. On 4 September 2003, police officers received information that Wallace would be concerned in the supplying of controlled drugs on that date. Wallace was observed driving his motor car to Campbell's home and was observed entering it. At that time Campbell lived at 75 Foresthall Crescent, Glasgow. At 7.56am Wallace was met at the door of Campbell's house by Campbell who had been waiting for Wallace. When Wallace left Campbell's home he was followed by police officers. He parked his car and thereafter entered the driver's seat of a black taxi. Thereafter he drove the taxi to the car park of Wickes DIY Store, London Road, Glasgow. He was seen to emerge from his taxi and go to a burger van. He purchased an item and returned to his taxi. Thereafter he drove his taxi and parked it next to a white Mercedes van in the car park. This van had a sole occupant who was later identified as a man from Liverpool. The man from Liverpool emerged from the white Mercedes van carrying a Kwik Save bag which obviously contained something. He passed the bag through the window of the taxi to Wallace who then drove off. Wallace was followed and the taxi stopped. The bag which had been passed through the driver's window to Wallace was discovered hidden under a jacket in the front passenger footwell of the taxi. The contents of the bag proved to be three half-kilo taped packages weighing respectively 494.7 grams, 494.1 grams and 493.5 grams of diamorphine with respective purities of 38%, 39% and 37%. When Wallace was searched he had £330 in cash, mostly in £10 notes. Adjacent to the driver's seat of the taxi police officers found a mobile phone. Subsequent to the time of his detention the mobile phone recorded 11 missed calls from 'Bert'. When asked by police officers about this he told them that 'Bert' was someone he was due to play golf with. It later transpired from police investigations that the calls were made by Campbell to Wallace and were indicative of Campbell seeking to ascertain what had happened to the drugs. At interview Wallace denied any responsibility for the bag or its contents. The value of the heroin recovered on this occasion was £150,000.

The third chapter involved events surrounding 6 October 2003. Police officers were in receipt of information that Wright might be involved in the transportation of drugs to Glasgow on that date. Observations were maintained on Wright and a vehicle driven by him was stopped on Springburn Road by police officers. Under the front passenger seat of his car police officers found a carrier bag containing two kilo packages of drugs. Each kilo package contained two half-kilo packages. On analysis the four half kilo packages were found to contain heroin and weighed respectively 493.5 grams, 492.1 grams, 491.3 grams and 491 grams. The purity of one package was 28% and the other three had a purity of 27%. When asked about these packages Wright correctly stated that the weight was two kilograms but he maintained that they contained cannabis. At his formal interview Wright declined to comment. The total value of the heroin seized on this occasion was £200,000, making a total of £850,000 seized up to this point, all of which had been successfully taken out of circulation prior to distribution.

The final chapter related to events in December 2003. Police officers obtained information that Robert Campbell would be concerned in the supplying of controlled drugs on 29 December 2003. Prior to that date he had been under surveillance. On 29 December 2003 police officers were maintaining observations on Campbell's home at 52 Brookfield Drive, Glasgow. Campbell had moved there from 75 Foresthall Crescent in September 2003. Crown Production 179, photograph S, is a photograph of the house which was a newly built house and a former show house when it was purchased by Campbell. It can be seen that it is a substantial house. I was advised that it was lavishly furnished and among other things had a television set valued at £3,900. During the morning of 29 December Campbell left his house and was observed travelling to Flat 2/2, 90 Lenzie Street, Glasgow. Wallace and Campbell were observed leaving the tenement separately after a period of time. Wallace took a taxi which was stopped by police officers. Wallace was detained and asked if he had any drugs. He told police officers that they were down his trousers. When asked what type of drugs he had he said 'It's smack'. Campbell was also stopped by police officers. He had £950 in his trouser pocket, a blue mobile phone and a set of car keys. A detailed search of Wallace disclosed that in the waistband of his trousers he had six packages of heroin. Three of these were taken at random and found to weigh between 28 and 29 grams. In his left sleeve there were seven separately wrapped packages, one smaller than the other six. The other six packages weighed between 14.1 and 14.4 grams each. A further six separately wrapped packages were found in his right sleeve weighing between 28.8 grams and 29 grams. The total weight in his possession was approximately 450 grams and at least 18 of the packages were ready for distribution. Wallace was taken back into the flat at 2/2, 90 Lenzie Street after the drugs were removed from him. Within the flat the police found what was in effect a distribution centre for heroin at that address. It was what police call a 'chopping shop'. The flat was relatively sparsely furnished and amongst other things found included two silver-taped wrapped packages each representing one kilogram of controlled drugs. On further analysis they were found to contain 1003 grams and 998.3 grams respectively of heroin with respective purities of 15% and 16%. Police officers considered that the reason for the lower level of purity on this occasion represented an effort to recoup some of the earlier losses associated with the seizures in July, September and October. In the flat police also recovered eight bags of heroin, each containing between 14.2 and 14.4 grams representing 15 gram deals. They also recovered 12 bags of heroin, each containing approximately 30 grams. Thus in the flat there was recovered approximately two and a half kilos of heroin which, taken along with the 450 grams found in the possession of Wallace, represented almost three kilograms of heroin recovered on this occasion. The packages found on Wallace matched the manner in which the drugs in the flat were packaged. In addition, within a bin bag in the kitchen police officers found numerous bits of cut polythene bags which had been used to make drug wraps. They also found ten empty taped packages. I was shown a video recording of the search of the flat from which I could see that a very large number of bags had been used to package drug deals. I was advised that the remnants of some of the polythene bags matched the pieces of polythene bags containing drugs which had been found in Wallace's possession. The video also showed police offers recovering silver-taped packages from the bin bag. These packages had been cut to enable their contents to be emptied from them. It could be seen that each package had formed a block and police officers confirmed that the size and shape of the package was typical of the manner in which one kilogram of powdered drugs was packaged. Ten empty wrappers were found in the bin. Within the wrappers traces of heroin could be seen, indicating that ten kilograms of heroin had been processed and distributed. I was advised that the cost of a kilogram of heroin was £20,000 but that the retail value was £100,000. Accordingly it appeared that £1m worth of heroin had been distributed from this flat. If the three kilograms found in the flat or in the possession of Wallace is added to the other heroin recovered in the earlier chapters, the total value of heroin recovered and taken out of circulation before distribution was £1.15m whereas the evidence of the empty wrappers disclosed that at least £1m worth of heroin had been distributed from the flat representing an operation worth £2.15m. These values were based on the assumption that the heroin was not diluted further. If that occurred then the anticipated turnover of the business would be higher. Within the flat there was also found electronic scales under a mattress in one of the bedrooms and rolls of polythene bags. Wallace's home at 53 Acredyke Road, Glasgow was searched and police officers found approximately £5,550 in cash.

Campbell's house was also searched. In the loft police officers found £9,980 in cash which his wife stated belonged to Campbell. Under a wall unit in the livingroom police officers found £1,800 in coins. They also recovered a bank card in the name of Wallace and a note of the telephone number of Wright. The bank balance for Campbell's current account was £7,000 in credit. Both Campbell and Wallace were interviewed, Wallace being interviewed for the second time. Wallace explained that he had been given the key for the flat at 2/2, 90 Lenzie Road but would not say from whom. He admitted that he was to collect drugs from the flat and claimed that he had only been in the flat for about ten minutes and that no-one else had been inside when he was there. When police officers advised him that Campbell had been seen entering the flat and leaving it about a minute before him, Wallace claimed that he had not seen anyone else in the flat. Initially he also said that he did not know Campbell but later changed his story to say that he was someone he played golf with. He claimed to have visited the flat on only one occasion but he had been observed coming in and out of the flat previously.

Campbell told police officers at interview that he was unemployed and lived at 52 Brookfield Drive, Glasgow. When he was told that he had been seen visiting the flat in Lenzie Road, he declined to comment. He stated that he knew Wallace as a golf partner but was unable to explain the presence of Wallace's bank card in his home. He claimed that the cash in his house was the proceeds of gambling wins. Police officers had obtained information from the former owners of the Lenzie Street flat that Campbell purchased the flat from them in summer of 2003 and gave them £30,000 in cash. Campbell was observed delivering furniture there in December 2003. It is clear from his paying for the flat in cash and his dealings with the flat that Campbell was closely associated with it whatever the title deeds may say. Although Campbell was not claiming benefits, he was not working. When Campbell appeared for full committal at Glasgow Sheriff Court on 7 January 2004, his position in respect of the flat had changed. He made a judicial declaration in the following terms:-

'On the day of the arrest, the 29 December ah'd took aerial up to that flat to be fitted in wi a TV and also look at a fridge and ah fixed the TV and then ah went in to see the fridge and ah seen Mr Wallace and another man in the kitchen and ah walked over to see what they were doing and ah says 'What the fuck are yous up to ya bastards, yous'. When ah seen what it was, it was drugs, and ah told them to get tae fuck oot the flat and ah walked away. I just got oot the flat because I didnae know. I just panicked ye know.'"

[12] In view of the fact that two of the appellants, Connolly and Wallace, had not served a custodial sentence before, it was necessary for the judge to obtain social enquiry reports in respect of each of them. As it was desirable to sentence all the appellants at the same time the diet was adjourned in respect of all of them pending receipt of the two social enquiry reports.

[13] On 18 August 2004 the case called again. The social enquiry reports which had been called for were available. After hearing pleas in mitigation on behalf of each appellant the judge passed the following sentences:

In respect of Joseph Wright: 21 years imprisonment with effect from 28 July 2004, no discount being given for his plea of guilty.

In respect of Kevin Connolly: 12 years imprisonment with effect from 28 July 2004, discounted from 13 years for his plea of guilty.

In respect of John Wallace: 19 years imprisonment with effect from 29 December 2003, discounted from 20 years for his plea of guilty and with 6 months attributable to the bail aggravation.

In respect of Robert Campbell: 21 years imprisonment with effect from 8 March 2004, discounted from 22 years for his plea of guilty.

[14] Each of the appellants has appealed to this Court on the ground that the sentence passed against him is excessive.

[15] Before dealing with each case in turn it is appropriate to make some general observations. Looking at it as a whole the scale of the operation in which the appellants were involved was plainly very large. The quantity of diamorphine recovered amounted to approximately 111/2 kgs and had a street value of £1.15 million. There was evidence that a further 10kgs of diamorphine with a street value of £1 million had already been distributed. There was thus evidence of involvement with a total of approximately 211/2 kgs of diamorphine with a street value of £2.15 million. The judge was told that this was the third largest seizure of diamorphine in Scotland.

[16] Being concerned in the supplying of diamorphine, a Class A drug, is a very serious offence. The proliferation of drugs such as this is one of the great evils our present society. It brings untold misery to countless people. It ruins lives. It can result in death. Parliament has provided for sentences of imprisonment up to life imprisonment for this offence. That is an indication of how seriously it is viewed by Parliament and the courts must reflect the will of Parliament in the sentences that they pass. For these reasons the courts have repeatedly warned that those who take part in this activity must expect to be dealt with severely.

[17] Any sentence, of course, is a sentence for the crime of which the criminal has been convicted or to which he has pled guilty. He cannot be sentenced for more than that and he should not be sentenced for less. He may have been part of a major operation. If he was aware that he was part of such an operation that may be a factor which the sentencing judge can take into account when passing sentence. But he can only be sentenced for the part he has been convicted of or pled guilty to having played in the operation. When a reduced plea of guilty is offered, therefore, the Crown must exercise care in deciding whether to accept it. If such a plea is accepted by the Crown, the sentencing judge must also accept the fact that it is a reduced plea and sentence accordingly. It is not appropriate that a person who has pled guilty or has been convicted of having played a particular, specified part in a wider operation should then be treated as if he is responsible for the whole operation.

[18] There is, of course, no set tariff for a sentence in a case such as this. It is a matter for the discretion of the sentencing judge. There are no guidelines as such for him to follow. It has not been the practice of the Appeal Court to lay down such guidelines. But, although each case turns on its own facts and circumstances, previous decisions of the Appeal Court in appeals against sentence do in their own way provide guidance for the sentencing judge as to the appropriate range of sentences for particular types of cases. See HM Advocate v Lee 1996 S.C.C.R. 205, Lord President Hope at page 212. It is important for our system of justice that, subject always to the particular facts and circumstances of the case, and subject also to the consideration that exemplary sentences may sometimes be appropriate, sentences should fall within the appropriate range for cases of that type.

[19] We turn now to the cases for each appellant in turn.

Joseph Wright

[20] The sentencing judge tells us in his report that when moving for sentence the Advocate Depute stated that this appellant was aged 51 and lived with his wife and 10 year old granddaughter in Liverpool. The appellant appeared on petition at Glasgow Sheriff Court on 7 October 2003 when the case was continued for further enquiry. He was remanded in custody. On 14 October 2003 he was fully committed and granted bail. In the course of the trial he was remanded in custody on 28 July 2004 and had been in custody since then. The Advocate Depute tendered a schedule of previous convictions which disclosed that the appellant had twenty nine previous convictions involving forty three offences (corrected before us to twenty eight previous convictions involving forty two offences), principally offences of dishonesty and contraventions of the Road Traffic Act.

[21] On 18 August 2004 the judge was reminded by counsel for the appellant of the appellant's age and the nature of his previous convictions. It was accepted that he had pled guilty to being concerned in the supplying of substantial quantities of diamorphine with very high values. It was acknowledged that he faced a very lengthy custodial sentence. He lived with his wife and granddaughter. He had been in ill-health. He suffered from alcoholism and had been in detoxification. He had a heart condition. He did not blame anyone further up the chain of distribution for his own involvement.

[22] In sentencing this appellant the judge made the following comments:

"You are no stranger to the courts. You have 29 previous convictions involving 43 offences, although none of them are drugs offences. You have served prison sentences for offences of dishonesty including robbery, theft by housebreaking and theft. Your role in this criminal enterprise was significant. You were responsible for the delivery to Glasgow from Liverpool of large quantities of heroin. You received the cash in advance for such deliveries as evidenced by your activities on 11 July 2003. Having been paid earlier that day you met the customer that evening presumably to finalise details of delivery the following day. You arranged for others to transport the heroin from Liverpool and gave instruction to them upon their arrival in Glasgow as evidenced by your actions in regard to Connolly on 12 July 2003. You supervised Connolly by driving to his hotel and thereafter going to the bookmakers for the delivery. On that occasion you were responsible for five kilos of heroin and received an unspecified sum of money. Your actions subsequent to Connolly's arrest in attempting to avoid detection by making phonecalls from different locations confirm that you were no pawn in this matter. Your later involvement on 6 October with two kilos of heroin worth £200,000 confirms the fact that you were a major player in this enterprise, prepared to continue with it notwithstanding the setback in July. I consider that your involvement is at least as significant as that of Campbell as it was accepted that you played a principal role from the Liverpool end. The only distinction relates to record. Although you have previous convictions, none of them relate to drug dealing. The appropriate sentence in your case is 21 years imprisonment. I shall not grant any reduction having regard to the fact that the plea of guilty was not offered until after the trial commenced."

[23] Before us senior counsel for the appellant reminded us that the plea to which the appellant had pled guilty and which had been accepted was restricted to two dates in July and one in October 2003 and to addresses only in Glasgow (although it also included motor vehicles travelling between Liverpool and Glasgow). The extent of his involvement on 11 and 12 July was that he travelled from Liverpool to Glasgow and received a package, presumed to be money, for drugs to be delivered the next day. The next day the appellant Connolly came to Glasgow by bus from Liverpool. The two were working together. There was telephone contact between them. The appellant facilitated the drugs transaction and was to take the money from Glasgow back to Liverpool. He was supervising Connolly. The quantity of diamorphine involved was 5kgs. It had a street value of £500,000. On 6 October the appellant was asked to courier 2kgs of diamorphine from Liverpool to Glasgow. The car he travelled in was followed by the police. It was stopped in Glasgow and the drugs were found. The appellant had been asked to do this run to make up for the money which had been lost in the first chapter on 11 and 12 July. Although this had been narrated in the narrative given by the Advocate Depute on 30 July it had not been focused in the plea in mitigation given by the solicitor advocate then appearing for the appellant on 18 August. In particular, it had not been stressed that the appellant had been concerned in the supplying of diamorphine to the street value of £700,000, not £2.15 million, and his involvement was restricted to the three dates and the places (Glasgow and motor vehicles travelling between Liverpool and Glasgow) specified in the charge to which he had pled guilty. When the judge had suggested that the appellant seemed to be "the Liverpool end of this operation" and asked if that was right, the solicitor advocate had merely answered in the affirmative. He answered similarly when the judge suggested that the appellant would seem to have had some organisational responsibilities for the transportation and distribution of substantial quantities of diamorphine insofar as he supervised Connolly and he did not blame anyone further up the chain. This last point was true but it did not entitle the judge to say that the appellant was the Liverpool end for all of the drugs in this operation.

[24] In the course of the hearing on 18 August the judge had asked counsel for the appellant Campbell who the people were at the top end of the distribution chain who had decided that Campbell should continue to pay outstanding debts by becoming involved in drug trafficking. Counsel was not able to answer that question. Similarly the solicitor advocate for this appellant had not been prepared to blame anyone further up the chain of distribution. In that situation the sentencing judge had assumed that there was no one further up the chain and that the appellant was therefore at the top end of the chain at the Liverpool end. That, however, was the wrong approach. Counsel referred to Isdale v Scott 1991 S.C.C.R. 491. Although much of what the judge had said to the appellant when passing sentence was correct, there was no justification for saying that the appellant played a principal role from the Liverpool end of the operation or was a major player in the enterprise. The judge had been wrong also to equate the appellant's involvement with that of Campbell. The inference from that was that the appellant was as high up the chain in Liverpool as Campbell was in Glasgow. That conclusion was not justified. Moreover, unlike Campbell, the appellant had no trappings of wealth. His premises in Liverpool had been searched but no drugs or items of value had been found. He had no bank accounts and confiscation proceedings had not been taken against him. The appellant was essentially an alcoholic. That was an unlikely scenario for a major player in a drugs operation. Counsel submitted that in all the circumstances the sentence of 21 years imprisonment was excessive. By way of comparison he referred to the cases of Howarth v HM Advocate (No. 2) 1992 S.C.C.R. 525; Torres v HM Advocate 1997 S.C.C.R. 491, 997 G.W.D. 21-1008; Dickson v HM Advocate 1998 G.W.D. 29-1486; Montes v HM Advocate 1990 G.W.D. 32-1851; Ekkebus v HM Advocate 2002 G.W.D. 21-707; Hoekstra v HM Advocate (No.8) 2003 G.W.D. 14-466; HM Advocate v Carnall 1999 S.C.C.R. 904; and Newman v HM Advocate 1999 G.W.D. 24-1151. Counsel accepted, however, that each case turned on its own facts.

[25] In our opinion there is force in the submission that the appellant's activities to which he pled guilty cannot be equated with those to which the appellant Campbell pled guilty. It is perhaps not surprising that the sentencing judge drew the conclusions that he did from the answers the appellant's solicitor advocate gave to his questions at the hearing on 18 August 2004. As counsel before us accepted, much of what the sentencing judge said to the appellant about his involvement when passing sentence was correct. On one view we think there was justification in concluding that the appellant played a principal role from the Liverpool end. But in our view to equate his role with that of Campbell is elevating it too much. If by that the judge was concluding that the appellant played the principal role from the Liverpool end in this operation, we are of the view that that was not justified. The judge recognised that Campbell's previous criminal record was worse than the appellant's. The appellant, however, had a very significant record of previous convictions going back to 1969, even though they were not for drugs offences. We take into account that the appellant did not have the trappings of wealth that Campbell did. We also take into account that he has a history of ill-health and alcoholism. He was, however, concerned in the supplying of diamorphine, a Class A drug, with a total street value of £700,000. It was fair of the judge to say that his role was significant. He was responsible for the delivery to Glasgow from Liverpool of large quantities of drugs. On 11 July he received the cash in advance for such deliveries. He supervised Connolly, who had brought the drugs from Liverpool. The quantity involved on that occasion was 5kgs of diamorphine with a street value of £500,000. The appellant received an unspecified sum of money. Despite the fact that Connolly was detained on that occasion and the drugs seized, the appellant was not deterred and on 6 October he brought a further 2kgs of diamorphine with a street value of £200,000 from Liverpool to Glasgow. If it was perhaps going too far in the context of such a large operation to say that his later involvement on 6 October confirmed that he was a major player in the enterprise, he was certainly a significant player and a persistent one, not prepared to desist following Connolly's arrest in July. It is fair to conclude that he knew that he was taking a significant part in a large operation.

[26] Each case must turn on its own facts and circumstances. In respect of the offence to which the appellant pled guilty we have no doubt that a sentence for a substantial period of time was justified. We are also of the opinion that this is a case in which it was appropriate for the sentencing judge to pass sentences of an exemplary nature, to make it clear to those who take part in operations such as this that they must expect to be dealt with severely. Nevertheless, we are persuaded that the sentence of 21 years imprisonment imposed by the sentencing judge was in all the circumstances excessive. We consider that the appropriate sentence is 13 years imprisonment. We shall therefore quash the sentence of 21 years imprisonment passed on this appellant and substitute one of 13 years imprisonment. That sentence will be with effect from 28 July 2004, as the previous one was.

[27] It only remains to record that although the appellant pled guilty, the sentencing judge did not grant any reduction in the sentence having regard to the fact that the plea of guilty was not offered until after the trial commenced. No issue with that decision was taken before us.

Kevin Connolly

[28] In his report on this appellant the sentencing judge tells us that when moving for sentence the Advocate Depute said that the appellant was aged 48 and lived with the former co-accused, Patricia Slaven, in Liverpool. He was unemployed. He appeared on petition at Glasgow Sheriff Court on 14 July 2003 and was granted bail. He had been remanded in custody in the course of the trial on 28 July 2004 and had been in custody since then. The Advocate Depute tendered a schedule containing six previous convictions consisting of seven offences of dishonesty. The appellant had not served a custodial sentence.

[29] On 18 August 2004 the judge had the benefit of a social enquiry report and a medical report indicating that the appellant had suffered from asthma for many years and had had a myocardial infarction in February 1999. The report also stated that the appellant suffered from angina and a raised cholesterol level. It detailed his current medication. In the plea in mitigation on behalf of the appellant counsel reminded the judge that the appellant was aged 48. In 1994 he developed asthma but worked as a plasterer until 1999 when he suffered the heart attack. He commenced using illicit drugs at about that time and developed a habit. He became involved in theft and shoplifting to fund his habit. On the day before the offence he was offered money and drugs to transport drugs from Liverpool to Glasgow. He travelled by bus in the company of his co-habitee, one of the former co-accused. He was given instructions where to go. He went to a hotel to deliver the drugs but the recipient was not there. He was instructed to book into the Willow Hotel and thereafter to carry the drugs on his person for the purpose of delivering them. He was told to go to the bookmakers but not to carry a rucksack as the recipient of the drugs would not take delivery of a rucksack. He split the drugs up and took 2kgs of diamorphine to the bookmakers where he was arrested. The appellant had no assets and no trappings of wealth from drug dealing. He was deeply ashamed of his actions. He had an apprehension that he would be detained when he went to the bookmakers. He was sorry for his involvement in this matter. He had never been in custody before.

[30] In sentencing the appellant the judge made the following observations:

"Although you have previous convictions they are all for dishonesty and you have never served a custodial sentence. Your role in this affair is less significant than the others but it was still an essential role in the chain of supply of controlled drugs. Drug dealers depend upon couriers for the transportation of the drugs. Couriers should be under no illusion that they face heavy sentences in Scotland if they are caught transporting controlled drugs, particularly Class A drugs. Your role was greater than that of the courier who simply transports drugs on one day from one place to another. You were entrusted, albeit under the watchful eye of Wright, with five kilos of heroin worth £500,000. You were obviously expected to make several deliveries because on the day of your arrest you had taken two kilos to deliver to someone but left the remaining three kilos in your hotel room, presumably to deliver to others."

[31] Before us counsel drew our attention to the reduction in the charge to which the appellant had pled guilty. He reminded us that the sentencing judge had noted that the appellant's role was the least significant of all the appellants. He had not served a custodial sentence before. He only had six previous convictions. They were all at summary level and all for theft by shoplifting. They dated from between 1998 and 2001. His role in the offence to which he had pled guilty was as a courier. The sentencing judge had inferred that he was more than a "mere" courier who simply transported drugs from one place to another on one occasion and delivered them at the end of the journey. That was because, albeit under the direction of the appellant Wright, he had checked into a hotel when he came to Glasgow and had there split up the drugs he was carrying. He took some to the bookmakers, where he was detained. The remainder was left in his hotel room. It could be inferred from that that he was going to make a number of deliveries. Counsel submitted, however, that that was a wrong inference to take. The appellant was a "mere" courier in the sense described. Insofar as he did any more than that he was acting under the directions of Wright in a way that he had not expected or intended. The judge had been told this by counsel in his plea in mitigation on 18 August 2004 and the Advocate Depute had not contradicted it. The appellant's involvement had been over just two days. In these circumstances the judge's starting point of 13 years was excessive, although it was recognised that in view of the quantity and value of the drugs involved a substantial sentence was inevitable. Further, the discount which the judge had given for the plea of guilty was insufficient in the circumstances. This would have been a lengthy trial. Many witnesses would have had to give evidence. A great deal of expense was saved. The utilitarian value of the plea of guilty was therefore high. While the timing of the offer of the plea was not early, it was made clear by the Advocate Depute on Monday 26 July 2004 that it would be acceptable (following on from informal discussions in the previous week). That was why, as counsel had reminded the judge on 18 August, there had been no input, as he put it, on the appellant's behalf in the course of the trial. In these circumstances a greater discount than one-thirteenth was appropriate.

[32] In our opinion the judge was entitled to treat this appellant as more than a "mere" courier. His actings when he reached Glasgow with the drugs he had brought from Liverpool showed that he was more than that. The judge noted that he was acting under the supervision of Wright but, whatever may have been his original expectation or intention, the appellant must take responsibility for what he actually did. In our opinion the judge was also right to point out the essential part that couriers play in the supply of controlled drugs and to warn that such people should be under no illusion that they face heavy sentences in Scotland if they are caught transporting controlled drugs, particularly Class A drugs. Nevertheless, we are persuaded that the sentence of 12 years imprisonment imposed by the sentencing judge was excessive. We have taken into account all that was said by counsel on this appellant's behalf. In all the circumstances and having regard to the sentences which we think are appropriate for the other appellants we are of the opinion that the appropriate sentence for this appellant, before allowing for his plea of guilty, would be one of 9 years imprisonment. His offer to plead guilty in the terms which were ultimately accepted came late, although not so late as Wright's. The utilitarian value of a late plea is inevitably diminished but, as the judge recognised, some discount was appropriate. While a judge has considerable discretion in selecting a discount, we agree with counsel that in this case a discount of one-thirteenth does not sufficiently reflect the value of the plea of guilty in all the circumstances. We consider that an appropriate discount in this case would be 1 year. We shall therefore quash the sentence of 12 years imprisonment and substitute for it a sentence of 8 years imprisonment. Like the sentence imposed by the judge, that will be with effect from 28 July 2004.

John Wallace
[33] In his report on this appellant the sentencing judge tells us that when moving for sentence the Advocate Depute said that the appellant was aged 39. He appeared originally on petition at Glasgow Sheriff Court on 5 September 2003 following his first detention. He made no plea or declaration and was granted bail on that date. His subsequent involvement was a flagrant breach of bail. In respect of his second detention on 29 December 2003 the appellant appeared on petition the following day when the case was continued for further examination. He was remanded in custody. On 7 January 2004 he was fully committed and again remanded in custody. He had been in custody since 29 December 2003. The Advocate Depute tendered a schedule containing one previous conviction for a minor offence in the District Court. The appellant had not hitherto served a custodial sentence.

[34] On 18 August 2004 the judge had the benefit of a social enquiry report. The judge reports that in mitigation he was reminded by counsel that the appellant was aged 39. He had been in custody since 29 December 2003. From the outset the appellant knew that he was involved in the supplying of drugs but it was only after his detention in September that he was aware that it was diamorphine. Despite that detention he continued to be involved in the operation. The money recovered from his house which had been forfeited (approximately £4,000) was part of the drug dealing enterprise. The judge was invited to conclude that the appellant played a lesser role than Campbell because he had none of the trappings of wealth which Campbell had. Nevertheless, counsel for the appellant demurred from any suggestion that the appellant was Campbell's right hand man and the judge was invited in determining sentence to draw no distinction between the appellant and Campbell apart from one based on criminal record.

[35] In sentencing the appellant the judge made the following observations:

"Prior to your arrest in September you only had a minor conviction for a non-analogous offence. I shall treat you as a first offender. Having said that, it is clear that you played a significant role in this criminal venture. It was accepted on your behalf that you and the first accused were equally culpable as far as this enterprise was concerned. You collected one and a half kilos of heroin on 4 September. Despite being arrested and charged and released on bail, you continued to play an active role in the distribution of heroin in Scotland. You were involved in the sub-division, packaging and distribution of this controlled drug on a large scale including the distribution of at least 10 kilos worth £1m onto the streets of Glasgow and perhaps other towns and cities in Scotland. Your involvement in December was aggravated by the fact that you were on bail at the time. In your case this is an indication of your assessment of the risk of