Lord Mackay of Drumadoon

First Appellant: D Finnieston, SolicitorAdvocate; Hamilton Burns, Glasgow

Second Appellant: M Mackenzie; John Pryde & Co, Edinburgh

Respondent: S McKenna, AD; Crown Agent

19 August 2011

The appellants were tried along with three co-accused at the High Court in Glasgow. The trial began on 11 March 2011. At the conclusion of the Crown case on 25 March 2011 the first appellant pled guilty to two charges in the following terms:

"(001) between 17 December 2009 and 29 January 2010, both dates inclusive, at 14 Yementry Court, Flat 1/1, Buccleuch Street, both Glasgow and elsewhere you STEWART McPHEE, JACQUELINE McPHEE, JOSEPH PETER BOWDEN and JAMES MEECHAN GREIG were concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug, specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971, 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);

.....

(003) on 29 January 2010, at Flat 1/1, 145 Buccleuch Street, the car park of Harry Ramsden's, Paisley Road, both Glasgow and elsewhere you STEWART McPHEE, JOSEPH PETER BOWDEN, JAMES MEECHAN GREIG and MARSHALL ROBERT SHANNON were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971, to another or others, in contravention of Section 4(1) of the said Act;

CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

Those were the only charges the first appellant faced. At a later adjourned diet the first appellant was sentenced to six years imprisonment from 25 March 2011.

Before any defence case had opened, on Monday 28 March 2011 the second appellant pled guilty to charge 3 on the indictment, but in different terms from the first appellant, as follows:

"(003) on 24 February 2010, at the car park of the Dakota Hotel, Shawfoot Road, Holytown, you JAMES MEECHAN GREIG were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971, to another or others, in contravention of Section 4(1) of the said Act;

CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

The Advocate depute had previously not resisted a no case to answer submission in respect of the only other charge the second appellant faced. At a later diet the second appellant was sentenced to four years and ten months imprisonment from 28 March 2011. The sentence which the trial judge considered appropriate was one of six years duration, which he modified to take account of the fact that the second appellant had been remanded in custody between 24 February 2010 and 1 September 2010. The trial judge regarded that as equivalent to 14 months imprisonment.

The first appellant appeals against the sentence of six years on two grounds: (1) that the sentence was excessive having regard to the restricted terms in which the appellant was convicted and his personal circumstances; and (2) that the trial judge ought to have discounted the sentence by one-third rather than 25% since the plea ultimately tendered and accepted was identical to that offered unequivocally at the outset of proceedings against him.

The second appellant appeals on the single ground that the trial judge did not discount the sentence at all, whereas he should have discounted it by one-third since the plea ultimately tendered and accepted was identical to one offered unequivocally before he was indicted.

Although the first appellant, who was 45 years of age, had not previously offended, had a good employment record, had become involved in financial difficulty over a debt incurred by his estranged wife for which he had accepted responsibility, had been pressurised into participating in this criminal activity to meet that debt, and as a result of his conviction had lost his job and his home, we do not consider that the trial judge erred in selecting eight years as the notional starting point for the calculation of the appropriate sentence in view of the gravity of the offences to which the first appellant pled guilty. When the first appellant's flat was searched on 29 January 2010, a polythene bag containing 491 grams of diamorphine with a maximum realisable street value of £34,600 was found on the kitchen worktop. Charge 3 related to that. That search also revealed in a large cupboard in the hallway a red hydraulic press, which the first appellant acknowledged was used for making drugs but said belonged to someone else. A number of other items connected with the processing of controlled drugs were found, including a base plate and metal mould, a block of compressed powder which the first appellant said was glucose and which fitted the contours of the metal mould exactly, mixing bowls and a bag of unidentified white powder which the first appellant said he imagined was a "mixer". The hydraulic press was of a type used when cocaine is being adulterated with other forms of powder to expand its bulk and give it the appearance of a block of high grade cocaine with a high level of purity. The uncontroverted material before the sentencing judge was that this type of activity occurred at a higher level in the process than street dealing. The first appellant's involvement was thus in the supplying of two Class A controlled drugs. In relation to cocaine it extended over the period from 17 December 2009 until 29 January 2010, and in relation to diamorphine it involved a quantity of significant value, albeit confined to one day. In our opinion the notional starting point of eight years selected by the trial judge was in these circumstances entirely appropriate.

We turn now to the question of discount. In relation to the first appellant the trial judge applied a discount of 25% for two reasons: (1) the plea had been of little utilitarian value, since the evidence relating to the two charges still had to be led because it was relevant to the cases against his co-appellant and another co-accused; and (2) the plea tendered in terms of section 76 of the Criminal Procedure (Scotland) Act 1995 had been in relation to a petition containing only one charge relating to diamorphine. The first appellant never appeared on petition in respect of the charge relating to cocaine. A plea of guilty to that charge was tendered at the first preliminary hearing on the indictment which went to trial.

In our opinion the trial judge erred in modifying the discount from one-third in this case. He did so by taking into account an irrelevant consideration in relation to his first reason, and by penalising the first appellant in respect of matters over which he had no control in relation to his second reason. Having appeared on petition at Glasgow Sheriff Court on 1 February 2010 on one charge relating to heroin, the first appellant submitted a letter in terms of section 76 offering to plead guilty to that charge. That offer was not accepted. Thereafter an indictment was served containing two charges against him. When the case first called at a preliminary hearing on 21 June 2010, the first appellant tendered pleas of guilty to both charges, the first as libelled and the third in amended terms subsequently accepted by the Crown. The pleas tendered were unequivocal. The Crown chose not to accept them until immediately before the close of the Crown case against all accused.

We consider that in the circumstances of this case the first appellant unequivocally tendered acceptable pleas in respect of both charges at the earliest opportunity. He had no control over when his pleas would be accepted, or indeed whether they would be accepted. In the event the trial judge considered that the utilitarian value of these pleas was substantially reduced by reason of the need to lead evidence against co-accused. In our opinion that is irrelevant to the issue of how the first appellant's conduct in relation to the proceedings should be assessed. The Crown requires to establish a case against each individual accused separately. Proceedings could have been taken against the first appellant on his own. Had that been the case the trial judge would apparently have viewed the utilitarian value of the pleas tendered as greater than in the present situation, when in fact it is the same. The Crown would not have required to prove its case against the first appellant. The trial procedure undertaken thereafter, including any further investigation, would have related to the cases against other accused. The first appellant was thus entitled to the benefit of the discount normally considered appropriate in such circumstances, in the absence of any relevant countervailing factors. For these reasons we shall quash the sentence of six years imprisonment and, applying a discount of one-third to the notional sentence of eight years, in its place impose a sentence of five years and four months.

The circumstances affecting the second appellant are very similar. On the date of his full committal on 4 March 2010 he tendered a plea of guilty to charge 3, by way of section 76 letter, in the terms ultimately accepted. He again tendered a plea of guilty to that charge at the first preliminary hearing on 21 June 2010. The plea was rejected on each occasion. The second appellant pled not guilty to charge 1 throughout. He was acquitted of that charge by the trial judge upon an unopposed submission that there was no case to answer. Before any defence case opened he once more tendered a plea of guilty to charge 3 which was accepted. The trial judge decided not to discount the sentence to any extent, again because he did not consider that there was any utilitarian value to be attached to the plea since the evidence relating to the second appellant's involvement had to be led in any event in relation to cases against other accused. For the reasons given in the preceding paragraph we reject that as a basis for deciding not to discount the sentence. The terms of the trial judge's report to this court also indicate that he considered that the fact that the second appellant had twice been convicted in the High Court, once for assault and once for being concerned in the supplying of cocaine (he was sentenced to two years probation with a condition of 180 hours of unpaid work), and had recently been convicted of possessing cocaine also supported the decision not to discount the sentence otherwise appropriate. In our opinion none of the factors relied upon by the trial judge justifies refusing to follow what has become standard practice in relation to sentencing accused who indicate unequivocally at the earliest opportunity that they will plead guilty in terms which are ultimately accepted. For these reasons we shall quash the sentence of four years and ten months and substitute therefor one of three years imprisonment, calculated by applying a discount of one-third to a notional starting point of six years, and deducting a further year from the resultant four years to reflect the period spent in custody whilst on remand.