High Court refuses sentencing appeal by one of three men convicted of organised crime activity

About this case:

• Citation:
  [2023] HCJAC 32
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Pentland

Alistair Douglas pled guilty to charges of being involved in criminal activity directed by one of his co-accused, both of whom had also conspired to murder a man. He was sentenced to five years and three months of imprisonment, discounted from six years for his guilty plea, which he argued was excessive because it offended against the principles of comparative justice.

The appeal was heard by Lord Pentland and Lord Boyd. Ogg, solicitor advocate, appeared for the appellant and Miller, advocate depute, for the Crown.

Very bad decision

The appellant, along with his two co-accused, were involved in serious organised crime relating to the supply of controlled drugs and possession of firearms. One of the co-accused, Mullen, pled guilty to a charge of directing the appellant and the other co-accused, Gilmour, to commit serious offences, for which he received a headline sentence of 10 years. Gilmour, who pled guilty in different terms to the appellant, also received a headline sentence of 10 years.

It was accepted by the appellant that he had been concerned in the supply of diazepam, cocaine, and diamorphine, that he was in possession of an encrypted electronic device for the purpose of communicating about serious organised crime; and that he delivered a package containing a handgun and ammunition to Gilmour. Gilmour, in place of the third part of the charge, accepted he had in his possession a handgun, shotgun, and ammunition for the purpose of committing acts of violence.

In determining the appellant’s sentence, the sentencing judge noted that the appellant had no previous convictions, while Gilmour had a substantial record including supply of drugs and attempted murder. The appellant had played a lesser role in the activities of the group than Gilmour or Mullen and was not involved in the conspiracy to murder. However, he considered that the appellant’s wilful blindness to what was in a package he delivered to Gilmour did not alter the fact that he was responsible for the transport of an operational firearm which could be used as a murder weapon.

While it was accepted by the appellant that a lengthy sentence was inevitable, it was submitted that the headline sentence was excessive given his limited role, lack of previous offending, and his personal circumstances, including the death of his wife and the long-term illness of one of his sons. He acknowledged that he had made a very bad decision by agreeing to become involved with the others, but in all the circumstances the principle of comparative justice had not been observed.

Adequately reflected difference

Lord Pentland, delivering the opinion of the court, began: “We have given careful consideration to all the submissions advanced on behalf of the appellant, but we are not persuaded that the sentence imposed on him was excessive. The offence to which he pled guilty was undoubtedly serious. He played a significant role in the activities of a serious organised crime group. His level of culpability was high, as was the potential for serious harm to be caused by what he agreed to do.”

He continued: “The headline sentence for the appellant was 40 per cent lower than those selected for his two co-accused, the sentences for each of whom appear to us to have been relatively lenient. We consider that the differential adequately reflects the differing degrees of criminality and the differences in the respective criminal records of the three accused.”

Addressing the principle of comparative justice, Lord Pentland said: “While the principle is an important one, the question of comparative justice as between various accused on the same indictment can only be approached on a somewhat broad basis. Attempting to draw fine distinctions is not appropriate or helpful.”

He concluded: “At the end of the day the focus for this court must be on the question whether the sentence imposed on the appellant was excessive in the whole circumstances. We are satisfied that it was not.”

The appeal against sentence was therefore refused.