Crime gang member loses appeal against sentence for cocaine deal but successfully challenges travel ban

A crime gang member who was sentenced to seven years and four months’ imprisonment after being convicted of being concerned in the supplying of cocaine has failed in an appeal against his sentence.

 

The High Court of Justiciary Appeal Court refused the appeal after rejecting the argument that the sentence imposed was “excessive”.

 

But the appeal judges did rule that a travel restriction order banning the appellant from leaving the UK for two years following his release was unnecessary and should be quashed.

 

 

Lord Menzies and Lord Turnbull heard that the appellant Barry O’Neil pled guilty to a charge which libelled that, while acting along with the other named accused, he was concerned in the supplying of cocaine in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971; an offence was aggravated by a connection with serious organised crime in terms of section 29 of the Criminal Justice and Licensing (Scotland) Act 2010.

 

The agreed narrative presented to the sentencing judge described how the appellant, acting on behalf of the organised crime group, came to be involved in a drugs transaction with another established drug dealer by the name of Robert Allan after racking up gambling debts.

 

An arrangement was entered into between the organised crime group and Mr Allan that he would take delivery of two kilos of cocaine with a wholesale price of £45,000 and make payment to the group once he had sold the drugs.

 

The appellant met Mr Allan on a day in March 2013, handed him car keys, and told him that the drugs were in a concealed compartment between the registration plate of the vehicle and the compartment was operated by means of a lever underneath the bonnet. 

 

He also informed him that there were documents for the car in the glove compartment which he could use in the event of being stopped by the police, adding, “You better not f*** this up”.

 

During the following weeks, Mr Allan was visited by the appellant on two separate occasions, during which the appellant demanded the money due, although no threats were made.

 

 

The sentencing judge selected a headline sentence of eight years imprisonment, of which one year was attributable to the aggravation, but reduced the sentence to seven years and four months to take account of the guilty plea. 

 

A travel restriction order was also imposed in terms of section 33 of the Criminal Justice and Police Act 2001 for a period of two years prohibiting the appellant from leaving the UK. 

 

The appellant did not challenge the level of discount afforded or the period selected to reflect the aggravation, but contended that the headline sentence in respect of the drug supplying charge of seven years (before the aggravation) was “excessive” in light of the nature of his involvement, his “limited record” with no previous convictions for drugs offences, his lack of offending since 2013, the “positive terms” of the criminal justice social work report which assessed him as being at “medium risk of re-offending, and the fact that he was working full time and in support of his family before being sentenced. 

 

The appellant also contended that the travel restriction order should not have been imposed.

 

Counsel for the appellant maintained that the appellant’s involvement in the drug trafficking operation was that of a courier on a single day, followed by a request for payment for the drugs on two occasions. 

 

The sentencing judge failed to attach “sufficient weight” to the mitigatory factors and to the terms of the criminal justice social work report, which was said to be in positive terms and which assessed the appellant, who had a good work record and supported his wife and four children, as a medium risk of re-offending. 

 

Counsel referred to the recent case of Alexander Connelly and Gary Corkindale v HM Advocate 2017 HCJAC 42 in which the court held in the circumstances of that case that the appropriate starting point for the first appellant, who was concerned with the supply of diazepam and had no analogous previous drug-related convictions, was five years and the appropriate starting point for the second appellant, who was concerned in the supply of a variety of class B and class C drugs and who had one previous conviction was eight years.

 

Reference was also made to the English Sentencing Council’s definitive guideline for drugs offences and it was suggested that the appellant fulfilled a “lesser role”, which would have resulted in a starting point of about five years’ custody.

 

 

The judges observed that very great care should be taken in looking at English sentencing guidelines from a Scottish sentencing perspective, as courts in England and Wales approach the exercise of sentencing in “significantly different ways” from the Scottish approach.

 

Delivering the opinion of the court, Lord Menzies said: “We are not inclined to place great weight on the definitive guideline relied on in the present appeal. In any event, even if regard is to be given to it as a cross-check (and we do not suggest that this is necessarily appropriate) there are sufficient factors in the present appellant’s case which point to him having a significant role that we do not consider that a starting point of seven years can be said to be inconsistent with the definitive guideline. 

 

“Nor do we find much assistance from the decision of this court in Connelly and Corkindale. While consistency of sentencing is desirable, each case will inevitably turn to a very great extent on its own particular facts and circumstances. In that case the two appellants were concerned in the supply of class B or class C drugs; neither was concerned in the supply of class A drugs as the present appellant was.”

 

The judges also considered that it was “misleading” to describe the present appellant’s involvement in this major drug trafficking operation as merely that of a courier driving a car on one occasion.

 

Lord Menzies added: “The car was specially modified to provide a sophisticated safe and concealed compartment for the transportation of drugs. The appellant knew this and knew how access to this compartment operated. He knew about the documents in the glove compartment which could be used in the event of being stopped by the police. He knew that the drugs were to be collected by Mr Allan and he chased Mr Allan up to pay for them on two subsequent occasions. 

 

“The wholesale value of the cocaine, a class A drug, was £45,000 and the ultimate street value would have been greater than this. The sentencing judge took account of all the mitigatory features which have been relied on…and we cannot agree that he failed to attach sufficient weight to them.”

 

 

However, the court quashed the two-year travel restriction order imposed.

 

It was submitted that the sentencing judge had fallen into error in that he appeared to have considered it was his “duty” to impose an order for at least two years unless he could find reasons not to do so. 

 

This, it was submitted, was not what the legislation required; the court had to consider first if it was appropriate to make such an order, and thereafter if it determined that it was not so appropriate, to state its reasons for not making the order. 

 

In the present case it was submitted that such an order was “neither necessary nor proportionate”’ - it was a restriction on the liberty of the appellant which was not justified in the circumstances of the case.

 

Lord Menzies said: “We consider that the submissions on behalf of the appellant in relation to the travel restriction order are well founded. The sentencing judge does appear to have considered that he was obliged to impose the order and not to have gone through the first stage of considering whether it was appropriate to do so. 

 

“For the reasons advanced we do not consider that such an order is either necessary or proportionate in this case. For these reasons we do not consider that it is appropriate and we shall quash the travel restriction order.”