DAVID JOHN MILNE v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Justice General Lord Sutherland Lord Coulsfield | C173/99 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST SENTENCE by DAVID JOHN MILNE Appellant against HER MAJESTY'S ADVOCATE Respondent _____________ |
Appellant: McCluskey; George Mathers & Co.
Respondent: Mulholland A.D.; Crown Agent
4 June 1999
The appellant is David John Milne. He pled guilty at the High Court at Aberdeen on 22 February 1999 to two charges, one being a charge of being concerned in supplying amphetamine, a class B drug, on a particular day and the other being a charge of being concerned in supplying cannabis resin, also a class B drug on the same day. On 12 March 1999 at an adjourned diet the sentencing judge imposed a cumulo sentence of five years imprisonment.
The drugs concerned were various quantities of amphetamine with different percentages of purity, having a total street value estimated at up to £6,660. The potential street value of the cannabis resin was said to be £462 and in addition there were £975 in notes.
The appellant has three minor convictions which the sentencing judge regarded as being of no significance in relation to sentence. He lived at the locus with his parents and with a nine year old son. In addressing us today Mr McCluskey explained that since March the appellant's partner has had a child.
Up until August of 1997 the appellant had been employed in a fish factory. Mr McCluskey pointed out that he had a reasonable record of employment and that indeed, while awaiting trial in this case, he had obtained two jobs. However, while he was employed in the fish factory he required to work long hours to help support his child. In order to provide the necessary stimulation for these long hours, as Mr McCluskey put it, the appellant became a user of amphetamines and he would consume up to half an ounce a day. As Mr McCluskey explained, while he was in regular employment he was able to pay for those drugs. However, in August of 1997, he was paid off and by that time he had become addicted to the use of amphetamine. The habit continued after he was paid off but, although he was able initially to pay his supplier, the time came when he had to obtain the amphetamine on credit. The result was that he built up a debt to his suppliers and at the time of the offences that debt was in the region of £1,000. Mr McCluskey explained to us that the appellant was frightened of the people who were supplying him with the drugs and that they were in effect major players in the drugs scene who put him under pressure. In particular he was asked to keep the drugs, and the money which was found, for one or two days. The only drugs, the sentencing judge was told, which belonged to the appellant himself were two smaller quantities of amphetamine.
At the time of the search the appellant was not at home but he went voluntarily to the police after consulting a solicitor and told them that the drugs were his. Indeed Mr McCluskey said that he had, to a very large extent, co-operated fully with the police, although that co-operation had not extended to actually giving information about the identity of the drugs suppliers. That he had not felt able to do because of his fear of those persons.
It was said to the sentencing judge that the Social Enquiry Report about the appellant was largely favourable and indicated, as we have already explained, that he had obtained work pending the disposal of the case.
The sentencing judge obviously took the view, and Mr McCluskey accepted that he was entitled to take this view, that those who provide safe houses for drug dealers, even if they can be described as playing a relatively minor part in the drugs scene, nonetheless play an important part in that scene precisely for the reason that it would be more difficult for the major players to operate if they did not have these safe houses. Mr McCluskey did not challenge the idea that the sentencing judge was entitled to take the view that this was a serious offence. Nonetheless he submitted that, having regard to all the circumstances which we have already mentioned, the sentence selected could be regarded as excessive.
We proceed on the basis that the appellant was indeed providing a safe house for a dealer on this occasion and that this was a significant role in the overall structure of the drug trade in the area. We also note that the appellant was not willing to give information about the drug dealers concerned. These were all factors which the sentencing judge took into account. On the other hand we also have regard to the fact that the appellant had been, in broad terms, of relatively good character prior to the situation in August 1997 which led to him getting into debt and having to provide the safe house. We take into account also that he has no analogous previous convictions and that he is therefore somebody whom we can regard as having fallen down on this particular occasion rather than as having had a wider involvement.
For all these reasons we have come to the view that in this particular case the sentence selected by the judge can properly be regarded as excessive. We shall accordingly allow the appeal by quashing the sentence of five years and substituting a sentence of three years.