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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 32
HCA/2023/325/XC
Lord Pentland
Lord Boyd
OPINION OF THE COURT
delivered by LORD PENTLAND
in
APPEAL AGAINST SENTENCE
by
ALISTAIR DOUGLAS
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Ogg, solicitor advocate, Renfrew Defence Lawyers
Respondent: Miller, AD (ad hoc), Crown Agent
30 August 2023
Introduction
[1]
The issue in this appeal is whether the sentence of 5 years and 3 months
imprisonment imposed on the appellant was excessive because it offended against the
principles of comparative justice. The headline sentence selected for the appellant was
6 years; for each of his two co-accused (Mullen and Gilmour) the headline sentences were
10 years.
2
The facts and the guilty pleas
[2]
The material facts may be briefly summarised. All three accused were involved in
serious organized crime relating to the supply of controlled drugs and the possession of
firearms. Mullen operated at a higher level in the group than both co-accused and pled
guilty to a charge (charge 6) of directing them to commit serious offences involving drugs
and firearms. The appellant and Gilmour pled guilty, though in different terms, to a charge
(charge 5) of being involved in this criminal activity by agreement with Mullen. Gilmour
and Mullen also pled guilty to a charge (charge 7) of conspiracy to murder a man, who
appeared to be affiliated to a rival crime group.
[3]
In terms of his plea to charge 5 the appellant accepted that during the period from
27 March 2020 to 1 June 2020: (a) he was concerned in the supplying of diazepam, cocaine
and diamorphine; (b) he was in possession of an encrypted electronic device for the purpose
of communicating about serious organized crime; and (c) he delivered a package containing
a handgun and ammunition to Gilmour.
[4]
As we have explained, Gilmour also pled guilty to charge 5, though in somewhat
different terms. He accepted part (a) with the addition of the drug etizolam; accepted that
he too was in possession of the type of electronic device referred to in part (b); and instead
of part (c) accepted that he had in his possession and control a handgun, a shotgun and
ammunition for the purpose of using them to commit acts of violence.
Previous convictions
[5]
The appellant had no previous convictions. Gilmour had a substantial record
extending to convictions for supplying drugs and attempted murder. He had served a
3
sentence of 8 years imprisonment. Mullen had a limited record; it included, however, a
conviction for three charges of assault, two being to severe injury, resulting in consecutive
prison sentences of 5, 12 and 18 months.
The approach of the sentencing judge
[6]
The sentencing judge took into account that the appellant had played a lesser role in
the activities of the organised crime group than Gilmour and Mullen, that he was not
involved in the conspiracy to murder which was the subject of charge 7 and, unlike them,
had no previous convictions.
[7]
The charge to which the appellant pled guilty was, however, serious in that he
played a significant part in the activities of a serious organised crime group by acting as a
courier in respect of controlled drugs, including cocaine and diamorphine, and a package
which turned out to contain a handgun and ammunition. The extent of his activity in
transporting drugs was illustrated by the numerous instructions to him from Mullen about
the collection and delivery of drugs. The extent of the group's involvement with
diamorphine was illustrated by the recovery of 1.5kg of this drug in Gilmour's possession
on 1 June 2020 and Mullen's subsequent message to the appellant on 4 June 2020 that it
belonged to their organised crime group. The fact that this group was prepared to murder
someone who appeared to be affiliated with a rival organised crime group made their
activities even more sinister and dangerous and even though the appellant was not involved
in the conspiracy to murder, his wilful blindness to what was in the package he delivered to
Gilmour did not alter the fact that he was responsible for transporting within the group an
operational firearm which could be used as a murder weapon. All of this indicated a high
4
level of culpability. The level of potential harm resulting from the supply of these drugs and
the delivery of the gun and ammunition was high.
[8]
The judge selected the same headline sentence of 10 years for Gilmour (10 years on
charge 7 and 8 years concurrent on charge 5) and Mullen (10 years on charge 7 and 8 years
concurrent on charge 6) as Gilmour had a more serious record but Mullen operated at a
higher level in the group; these two factors balanced each other out. In relation to the
appellant, the sentence had not only to reflect the principle of comparative justice relative to
the co-accused but also the serious nature of the criminal activity in which he had been
involved.
[9]
Taking all relevant factors into account, the judge decided that an appropriate
headline sentence in the appellant's case was 6 years imprisonment. That sentence was
discounted, to reflect a plea at the trial diet, to 5 years 3 months and was backdated to
19 May 2023, being the date he pled guilty and was remanded in custody.
Appellant's submissions
[10]
It was accepted on behalf of the appellant that a lengthy sentence of imprisonment
was inevitable, but it was submitted that the headline sentence selected by the sentencing
judge was excessive, having regard in particular to the appellant's limited role, his lack of
previous offending and his personal circumstances, in respect of all of which he compared
favourably with both co-accused. We were reminded that Mullen operated at a higher level
in the group than the others and that the appellant and Gilmour had pled guilty to being
involved in criminal activity by agreement with Mullen. Gilmour had also pled guilty to
being concerned in the supplying of an extra drug (etizolam) and to having possession of a
sawn-off shotgun for violent purposes. The appellant played no part in the conspiracy to
5
murder. Moreover, he had no criminal record, whereas each of his co-accused did have
significant records. Reference was also made to the appellant's personal circumstances; his
wife having died, he brought up three sons, one of whom suffered from long-term illness;
the appellant was his carer. The appellant suffered from a number of medical conditions.
He acknowledged that he had made a very bad decision by agreeing to become involved
with the others. In all the circumstances, the principle of comparative justice had not been
observed, resulting in an excessive sentence being imposed on the appellant.
Analysis and decision
[11]
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. 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. While the principle is an important one
(Armstrong v HM Advocate 2021 JC 227), 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. 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.
[12]
The appeal is refused.
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