Organised crime gang member has jail term reduced following appeal over sentence ‘discount’

A man who was sentenced to seven years’ imprisonment after pleading guilty to being involved in serious organised crime has had his custodial term reduced following an appeal.

 

Michael Brown, who was indicted along with eight other accused, argued that the trial judge failed to take into account the fact that he had given an “unequivocal indication” that he intended to plead guilty.

 

The Appeal Court of the High Court of Justiciary ruled that the trial judge “erred” and quashed the sentence imposed, substituting a sentence of six-and-a-half years’ imprisonment.

 

 

Lord Menzies and Lord Turnbull heard that the appellant pled guilty at a continued preliminary hearing on 24 November 2017 to an amended charge of acting along with his co-accused to commit and organise the commission of serious offences, namely; the construction of concealed hides in a number of premises and vehicles in which money, firearms and technical and counter surveillance equipment was concealed, obtaining paraphernalia such as disguises, false documents and passports in order that the true identities of those participating could be concealed, the lease and use of multiple premises and vehicles in order to store, conceal and transport money, drugs, firearms and other equipment used to further the commission of serious organised crime, the use of the anti-surveillance equipment, and re-set of motor vehicles.

 

On 22 January 2018, at an adjourned diet for sentence, the sentencing judge selected a headline sentence of eight years’ imprisonment, to include six months for a bail aggravation, and discounted this to a period to seven years in light of the plea.

 

However, the appellant was granted leave to appeal to challenge the level of discount afforded.

 

The trial judge considered that the timing of the plea, which was tendered at the fourth preliminary hearing and on the last day before the trial, was not materially earlier than a plea at trial.

 

The judge noted that in the case of Spence v Her Majesty’s Advocate2008 JC 174 the court had made it abundantly clear that “there must be an unequivocal indication of an intention to plead guilty by tendering a plea at preliminary hearing and adhering to it or by section 76 letter”.

 

But the sentencing judge concluded that whatever discussions had taken place between defence agents and the Crown behind the scenes did not meet these criteria.

 

 

On behalf of the appellant, it was submitted that the judge had “fallen into error” in his interpretation of what the court had said inSpence, and that the court had merely indicated examples of methods by which an accused person could convey an unequivocal intention of his position to the Crown.  

 

He explained the procedural history of the case explained, pointing out that prior to the first preliminary hearing in the case on 4 August 2017 the appellant’s representatives met with Crown and intimated that he was prepared to plead guilty to an amended charge, but the offer was rejected.

 

Following the second preliminary hearing on 29 September 2017 further discussions took place, and at a meeting on 27 October the Crown confirmed for the first time that a plea of guilty from the appellant to an amended charge would be acceptable.  

 

The appellant’s instructions were obtained and on 2 November it was agreed with the Crown that the plea would be tendered.  

 

A third preliminary hearing which had been scheduled for 3 November 2017 was postponed to allow the Crown to continue discussions with the appellant’s co-accused and to allow others to continue with trial preparation. 

 

The third preliminary hearing then took place on 21 November 2017 but the Crown’s discussions with the co-accused had not been completed and a further continued preliminary hearing was fixed for 24 November, and it was agreed between the Crown and the appellant’s agents that he would tender his plea of guilty at that continued hearing, which duly happened.    

 

It was argued that the appellant had thus conveyed an “unequivocal indication” of his position by 2 November 2017 and that this was the date which the trial judge should have focused on in considering the question of sentence discount, rather than the date on which the plea was actually tendered.  

 

 

Allowing the appeal, the judges agreed that the sentencing judge was in error in indicate that the only methods by which the accused’s unequivocal indication can be conveyed for the purposes of is by pleading guilty, or by section 76 letter.

 

Delivering the opinion of the court, Lord Turnbull said: “In these circumstances it seems to us that the appellant did indicate his intention to plead guilty on 2 November at what was the conclusion of a series of bona fide discussions between his representatives and the Crown, in what was a complex case which would have involved a lengthy trial had resolution not been achieved.   

 

“We therefore agree that the trial judge erred in declining to take account of these circumstances for the purposes of section 196 of the 1995 Act. We shall therefore grant the appeal and quash the sentence imposed. 

 

“In its place we shall impose a headline sentence of eight years’ imprisonment which we shall discount by approximately 20% to a period of six years and six months.”