(1) Mark Anthony Simpson and (2) Lee Daniel Wallace v. Her Majesty’s Advocate [2018] HCJAC 49

Note of appeal against sentence:- On 20 November 2017, at a trial diet at Aberdeen High Court, the appellants, along with a co-accused, pled guilty to two charges of being concerned in the supply of cocaine and diamorphine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971 and both charges were aggravated by section 29 of the Criminal Justice and Licensing (Scotland) Act 2010, namely, that the offences were aggravated by a connection with serious organised crime. On 30 January 2018, after obtaining Criminal Justice Social Work Reports the trial judge sentenced the first appellant to 8 years 6 months imprisonment in cumulo in relation to the two charges, 12 months being attributable to the serious organised crime aggravations. The trial judge sentenced the second appellant to 6 years 6 months imprisonment in cumulo in relation to the two charges, 12 months being attributable to the serious organised crime aggravations. The appellants appealed against the sentences imposed. It was submitted on behalf of both appellants that there had been an element of ‘double counting’ by the trial judge as the commission of the offences necessarily involved serious organised criminal activity and the imposition of a further period of 1 years imprisonment for the section 29 aggravation was excessive. It was accepted that section 29 of the 2010 Act required the sentencing judge to take into account the aggravation but section 29(5)(d)(ii) provides that there may be circumstances where it is inappropriate to impose an increased penalty. In the present case the aggravations were accepted by the appellants, however, the circumstances amounting to the aggravation were the same circumstances which constituted the offences and there were no separate circumstances to justify an separate increased penalty. Reference was made to HMA v Andrew Steven [2017] HCJAC 7 which was a Crown appeal against sentence where almost all of the 55 charges which the respondent had pled guilty to contained aggravations in terms of section 29 of the 2010 Act and the trial judge did not impose an additional penalty and there the court refused the Crown appeal. It was submitted on behalf of the appellants here that the court should follow that case in the present case. On behalf of the Crown it was submitted that such statutory offences trigger the aggravation by their very nature and would not necessarily result in an additional penalty being imposed. Here the court agreed with the submissions made on behalf of the appellants and allowed the appeal. The court observed that whilst section 29(5) requires the court to take the aggravation into account in determining the appropriate sentence there is no requirement that the sentence must be increased because of the aggravation. In relation to the present case the court considered that the trial judge had taken into account all of the relevant factors in selecting the sentences for the substantive offences and the imposition of an additional 12 months for the aggravations could not be justified as the factors for both elements of the sentence were, in essence, the same and the additional 12 months did amount to an element of ‘double counting’. Those elements of the sentences were quashed in relation to each appellant.