John McMahon v. Her Majesty’s Advocate [2016] HCJAC 45

Note of appeal against sentence:- On 9 October 2015, at Glasgow High Court, the appellant was convicted of various contraventions of the Misuse of Drugs Act 1971, a contravention of section 2 of the Road Traffic Act and two charges relating to contraventions of the Firearms Act 1968. The appellant was sentenced to a total of 7 years and 10 months imprisonment in respect of these charges discounted to reflect the fact that he had offered to plead guilty at an earlier stage in the proceedings. The appellant appealed against his sentence. The basis of the appeal was that the sentence imposed in relation to the section 4(3)(b) contravention of the Misuse of Drugs Act 1971 of 4 years and 8 months imprisonment (charge 1) was excessive having regard to the principles of comparative justice. The appellant’s co-accused were sentenced to similar periods of imprisonment, however, their involvement in being concerned in the supply of £1m of diamorphine was significantly greater that that of the appellant. An earlier sentence for a separate indictment was imposed on the appellant which comprised part of the offending in charge 1 and that sentence had a starting point of 4 years which was discounted to 3 years to reflect an early plea of guilty. On behalf of the appellant it was submitted that if the two starting points were added together then the appellant had received a starting point sentence of 10½ years. It was submitted on behalf of the appellant that he was acting as a courier whereas his co-accused, Steven Nisbet was the principal figure in the operation and James Nisbet was the main henchman and that in selecting the sentence the trial judge had the appellant received a sentence with a starting point greater than James Nisbet’s and only marginally less than Steven Nisbet’s. Here the court allowed the appeal and quashed the sentence of 4 years and 8 months imprisonment in respect of charge 1. The court considered that a total of 8½ years for the appellant’s involvement in all the matters referred to in charge 1 including the present indictment and the previous indictment was appropriate which included 6 months for the bail aggravation. From the headline sentence of 8½ years the starting point of 4 years for the earlier indictment was deducted resulting in a starting point of 4½ years including the bail aggravation of 6 months. The court applied a discount of 25% to reflect the plea of guilty resulting in a sentence of 3 years and 4 months imprisonment which included 4 months for the bail aggravation in relation to charge 1 resulting in a total period of imprisonment 6 years and 6 months following on from the reduction in the sentence for charge 1.