Appeal Against Sentence By Alexander Sutherland Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Brodie,Lord Matthews |
| Neutral Citation | [2015] HCJAC 115 |
| Date | 13 November 2015 |
| Year | 2015 |
| Docket Number | HCA/2015 |
| Court | High Court of Justiciary |
| Published date | 24 November 2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 115
HCA/2015/2229/XC
Lord Justice Clerk
Lord Brodie
Lord Matthews
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE CLERK
in
APPEAL AGAINST SENTENCE
by
ALEXANDER SUTHERLAND
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: Jackson QC, Glancy; Paterson Bell (for David Kinloch & Co, Glasgow)
Respondent: R Goddard, AD; the Crown Agent
13 November 2015
Introduction
[1] On 19 June 2015, at a continued Preliminary Hearing in the High Court at Glasgow, the appellant pled guilty to a charge which libelled that:
“(013) between 24 October 2011 and 1 May 2013, … at [various addresses in Scotland] you … [and others] were concerned in the supplying of a controlled drug namely Diamorphine, commonly known as ‘Heroin”, a Class A drug … 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); …”.
He was sentenced to 13½ years imprisonment. This had been discounted by 25% from 18 years for the early plea. Eight co-accused had their pleas of not guilty accepted. The plea resolved a prosecution which would otherwise have involved a trial lasting weeks, and possibly months.
The narrative
[2] There was a narrative agreed by the Crown and the appellant. It must be said in limine that the content of this narrative, like many others of its type, is bedevilled by irrelevant evidential material. No doubt for reasons of expediency, it has the air of being cut and paste from the Crown Office precognition report. It thus contains, for example, references to the nature and extent of the police investigation and to what a particular courier, described as the “assisting offender”, is reported to have said. It is difficult to extract what essential facts were agreed without considerable editorial effort. That exercise having been completed, it appears that the appellant was the “director” of an organised criminal gang based in Glasgow which was concerned in the acquisition, adulteration and onward supply of heroin to associates in Edinburgh. The supply operation ran from March 2012 until one of the appellant’s couriers was detained on 27 March 2013, in possession of 2 kilograms of heroin, which he had been due to deliver to Edinburgh.
[3] The appellant would source what the narrative expressly describes as “’pure’ ie unadulterated” heroin in Glasgow, for which he paid between £36,000 and £42,000 per kilo. He would arrange for this to be collected by or delivered to the courier, typically in 1 kilo amounts. The courier would adulterate the heroin, by breaking down the pressed bricks, quadrupling the weight with adulterants, and re-pressing the powder. In this way, 1 kilogram would become 4 kilograms. The courier would deliver the drugs, usually in 4 kilo quantities, to Edinburgh. The courier made ten such deliveries in the period libelled (ie 40 kilograms). The wholesale price of such a kilo was between £12,250 and £15,000. Thus each kilo bought by the appellant would become worth between £49,000-£60,000 – producing a profit of £7,000-£24,000 per kilo; the price paid being taken back to the appellant. Once further adulterated and split into quantities for sale to end users at street level, the 40 kilos of heroin would ultimately have been sold for about £2.8 million. Although it is not touched upon in the narrative, the heroin, which was found in possession of the courier had a purity of between 8 and 11%. Assuming an unusually precise quadrupling of the bulk by the courier, the purity of the “unadulterated” heroin sourced by the appellant could be assumed to have been between 32 and 44%.
[4] The appellant had a record which included the possession of weapons. Of particular significance, he had a previous conviction dated March 2013 from Dumbarton High Court for concern in the supply of drugs. This had attracted a sentence of 42 months, part of which had remained unexpired at the date of the offending.
[5] In mitigation, the sentencing judge was asked to regard the appellant as a young man who had come from a background of “well-known extensive criminality”. He had entered the family business. The appellant’s involvement had been more in the nature of a director, rather than the chief executive. His profit had been somewhere in the region of £70,000 - £240,000, rather than the millions reflected in the total theoretical value at street level.
[6] The sentencing judge reports that he had never previously encountered a convicted person who had had access to such quantities of “unadulterated heroin”. This placed the appellant and his associates at the highest level of the drug supply network in the United Kingdom. He had reached that conclusion because “they must have had first access to heroin directly upon its importation into this country”. He regarded it as important to take the opportunity of “expressing firmly the court’s, and society’s, view of the level of criminality associated with those who operate at the top end of the drug supply network and who take so much advantage of so many below them for substantial illegal financial gain”.
[7] In his sentencing statement the judge made a powerful reference to the extent to which the abuse of heroin had “blighted communities, robbed families of their children, destroyed lives which would otherwise have been productive and … led to an associated crime wave indulged in by users in an attempt to fund their ongoing habits”. He drew upon his own extensive experience and sought to impose an appropriate sentence by reference to the many cases with which he had familiarity. These included Hamill v HM Advocate 2000 GWD 13-480, which involved an 18 year sentence for concern in the supply of £1.5m of heroin, valued at street level, and McGovern v HM Advocate, unreported, 26 March 2009, in which the same judge had considered 12 years as an appropriate starting point for concern in the supply of £0.5m of heroin where he was also imposing a consecutive sentence, with a starting point of 8½ years, for a firearms offence. The judge reports that an appeal against sentence was refused.
Submissions
[8] There was no challenge to the level of the discount. The appellant’s central contention was that the starting point of 18 years was too high. It was in excess of the Definitive Guideline produced by the Sentencing Council of England and Wales. That suggested a range of 12 – 16 years for the most serious offences. It was incorrect both to place this case in that category, and to consider that there were aggravating factors justifying a greater headline sentence.
[9] The sentencing judge had referred in his report to the appellant having sourced pure “unadulterated” heroin. No purity analysis had been contained within the agreed narrative. The actual analysis had demonstrated that the heroin had not been “unadulterated”. That word had only been used in the narrative to describe a level of purity above that existing at street level. The sentencing judge had misunderstood that. The appellant had not been involved in the importation of heroin. He had sourced it in Glasgow.
[10] A report by William Percy, a retired police officer, dated 15 October 2015, had been lodged for the appellant as support for the proposition that the sentencing judge had erred in sentencing the appellant on the basis that he and his associates were placed at the highest level of the drug supply network in the United Kingdom. This stated that a kilo of heroin could be bought in Turkey for about £8,000. It could be bought in the UK for between £15,000 and £22,000. It would have a purity level of about 66%, although this could be as low as 42%. In the UK the cheapest source was in the West Midlands of England, where purity would be about 50%. If, as was said, the appellant had paid £36,000 or above...
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