‘Director’ of organised drugs gang fails in appeal against ‘excessive’ sentence

The Criminal Appeal Court ruled that the starting point of 18 years, which was discounted by 25 per cent to 13-and-a-half years after the appellant pled guilty to the charge against him, was “a reasonable one”.

The Lord Justice Clerk, Lord Carloway, sitting with Lady Brodie and Lord Matthews, heard that on 19 June 2015, at a continued preliminary hearing in the High Court at Glasgow, the appellant Alexander Sutherland pled guilty to a charge which libelled that between October 2011 and May 2013, he and others were concerned in the supplying of the class A drug heroin to another or others, in contravention of the Misuse of Drugs Act 1971.

The eight co-accused had their pleas of not guilty accepted, meaning the appellant’s plea resolved a prosecution which would otherwise have involved a trial lasting weeks, and possibly months.

The agreed narrative stated that the appellant, who was described as the “director” of the operation, would source what was described as “’pure’ ie unadulterated” heroin in Glasgow, for which he paid between £36,000 and £42,000 per kilo, and would arrange for this to be collected by or delivered to a 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, before delivering 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, meaning each kilo bought by the appellant would become worth between £49,000-£60,000 – producing a profit of £7,000-£24,000 per kilo.

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.

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” and had entered the “family business”.

The appellant’s 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.

However, the sentencing judge reported that the appellant and his associates were at the highest level of the drug supply network in the UK and 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”.

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 also drew upon his own extensive experience and sought to impose an appropriate sentence by reference to the many cases with which he was familiar.

But the appellant’s central contention was that the starting point of 18 years was “too high” and “out of kilter” with similar cases.

It was in excess of the Definitive Guideline produced by the Sentencing Council of England and Wales, which suggested a range of 12 to 16 years for the most serious offences.

The judge appeared also to have assumed an involvement in drug supply wider than the 40 kilos which had been sent to Edinburgh by means of the courier.

It was further argued that the sentencing judge had failed to give sufficient weight to: the pressures upon the appellant brought about by being brought up by a criminal family; and the limited amount of profit received.

Refusing the appeal, the judges observed that the sentencing judge was a “very experienced trial judge” and that the sentence imposed was one which was “in line” with those considered by the appeal court as “appropriate” for those convicted of directing large scale heroin supply networks in Scotland.

Delivering the opinion of the court, the Lord Justice Clerk said: “Given the quantities and nature of the operation involved, any difference, between the judge’s description of the facts as ‘placing the appellant and his associates at the highest level of the drug supply network within the United Kingdom’ and the position advanced as the reality at the appeal hearing, would have had a minimal effect in terms of sentencing. Any error made by the judge in relation to the volume of dealing falls into the de minimis category, when the overall amounts are realised.”

The judges added that the Definitive Guidelines from the Sentencing Council of England and Wales often provided “a useful cross check” for sentences in Scotland.

“They should not, however, be applied in Scotland in a rigid or mechanistic fashion, given the differences in sentencing purposes, practices and regimes between the two jurisdictions,” Lord Carloway said.

The court also noted that the appellant raised an interesting point about the effect of an offender coming from a “criminally oriented family”, and observed that while this may be seen as “reducing moral culpability”, it was a factor “more than outweighed by the need to discourage endemic criminality”.

The Lord Justice Clerk added that it was important to remember that it was the overall sentence which the court had to consider.

He explained: “Whilst the appellant did not, of course, challenge the discount for the early plea, that discount was a very generous one for a sentence of this length even against a background of substantial utilitarian value. Be that as it may, the final sentence arrived at was a reasonable one in all the circumstances.”