Barry O’Neill v. Her Majesty’s Advocate [2018] HCJAC 47

Note of appeal against sentence:- The appellant pled guilty at the High Court of being concerned in the supply of cocaine over a one month period contrary to section 4(3)(b) of the Misuse of Drugs Act 1971with the offence aggravated by a connection to serious organised crime in terms of section 29 of the Criminal Justice and Licensing (Scotland) Act 2010. The appellant was sentenced to 7 years and 4 months imprisonment discounted from a headline sentence of 8 years imprisonment (including one month for a bail aggravation) to reflect the plea of guilty tendered at the trial diet. The appellant was also made the subject of a travel restriction order in terms of section 33 of the Criminal Justice and Police Act 2001 for a period of 2 years prohibiting the appellant from leaving the UK. The appellant appealed against his sentence contending that the headline sentence of 7 years before the bail aggravation was excessive. No issue was taken with the level of discount. It was also contended that the travel restriction order was unnecessary. It was submitted on behalf of the appellant that having regard to the appellant’s limited involvement as a courier, his limited schedule of previous convictions and the positive terms of the Criminal Justice Social Work Report which classified him as being at medium risk of re-offending the sentence imposed was excessive. It was further submitted that the personal circumstances of the appellant including his full time employment and his supportive family were factors which ought to have reduced the headline sentence. Here the court refused the appeal in relation to the criticisms of the headline sentence. The court considered that the appellant’s involvement went beyond that of a courier in light of the drugs recovered (2kg of cocaine) being concealed in a specifically designed secret compartment of the car being used to transport the drugs. In addition, there were documents in the car to be used if Mr Allan (the person to whom the drugs were being supplied) was stopped by the police. The court also noted that Mr Allan had encountered various financial problems and renegotiated the arrangement with the organised crime group resulting in the return one of the 1 kg packages of cocaine and £30,000 being paid for the other. The court noted that over the following weeks Mr Allan was visited by the appellant on two separate occasions during which the appellant demanded the money owed. The court considered that due to the value of the drugs and the profits likely to result from their sale it could not be said that the sentencing judge had failed to attach sufficient weight to the mitigatory factors placed before him. The court reiterated that whilst reference to the English sentencing guidelines can be of assistance care should be taken in looking at them from a Scottish perspective and in the present case it could not be said that a starting off point of 7 years was excessive. The court allowed the appeal in relation to the travel restriction order and the 2 year order was quashed. The court noted that the sentencing judge erred in holding that he was obliged to make the order rather than considering whether it was appropriate for him to do so. In light of the appellant not having offended since 2013 the court took the view that the 2 year order was neither necessary or proportionate.