Drug dealers’ sentences cut following appeal over ‘double counting’ of serious organised crime aggravation

Two drug dealers who were jailed after pleading guilty to being concerned in the supply of cocaine and heroin with a street value of more than £100,000 have each had their prison sentences reduced by a year following an appeal.
Mark Simpson and Lee Wallace were sentenced to eight-and-a-half and six-and-a-half years’ imprisonment respectively – 12 months of which were attributable to the fact that the offences were aggravated by connections with “serious organised crime” – for their involvement in what the trial judge described as a “significant drugs operation”.
But the High Court of Justiciary Appeal Court ruled that the judge’s decision to increase the sentences imposed by a year to reflect the aggravations amounted to “double counting” and therefore substituted sentences of seven-and-a-half and five-and-a-half years.
‘Excessive sentence’ 
Lord Menzies and Lord Turnbull heard that the appellants appeared for trial at the High Court of Justiciary at Aberdeen in November 2017 along with two co-accused, when both appellants pled guilty to two charges of contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971, aggravated by connections with serious organised crime in terms of section 29 of the Criminal Justice and Licensing (Scotland) Act 2010.
Their pleas of guilty, and other pleas of not guilty, were accepted by the Crown and thereafter, having obtained criminal justice social work reports on 30 January 2018 the trial judge sentenced the two appellants for their roles as controller and distributor in a “sophisticated and coordinated operation involving a network of suppliers” over a seven-week period.
However, the appellants appealed against the sentences imposed, arguing that the increase of one year to reflect the aggravation was “erroneous and excessive”.
It was submitted that the circumstances which gave rise to the aggravation were the same circumstances which constituted the crimes, as the offences “inherently involved organised criminal activity of a serious nature”.
The trial judge’s justification for the additional penalty relied on circumstances already used to justify the selection of the sentence imposed for the substantive offences, meaning there was an element of “double counting”.
Although section 29 of the 2010 Act required the sentencing judge to take into account the aggravation, it also recognised that there may be circumstances where it is “inappropriate” to impose a separate or increased penalty.
It was submitted that since the nature of the offence itself constituted, for the purposes of the 2010 Act, serious organised crime, it was argued that the decision to increase the sentence due to the aggravation amounted to an “error of law”.
‘Double counting’
Allowing the appeal, the judges observed that most, if not all cases of being concerned in the supply of a class A drug will be offences aggravated by a connection with serious organised crime, but where the relevant factors have been taken into account when setting the sentence for the substantive offence there is “no requirement” to increase the sentence because of the aggravation.
Delivering the opinion of the court, Lord Menzies said: “It is clear from his careful report to us that the trial judge took into account all of these factors when determining what sentence should be imposed on each of the appellants for the substantive offences to which they had pled guilty, namely seven-and-a-half years in respect of Mark Simpson and five-and-a-half years in respect of Lee Wallace.  
“No issue is taken in either of these appeals with those sentences, nor with the exercise of assessment which the trial judge carried out in regard to them. However, with regard to each of these appellants the trial judge then went on to increase that sentence by one year due to the aggravation.  
“We observe that, while section 29(5) requires the court to state that the offence was aggravated by a connection with serious organised crime, and record the conviction in a way that shows that the offence was so aggravated, and take the aggravation into account in determining the appropriate sentence, there is no requirement that the sentence must be increased because of the aggravation. 
“The factors to which the trial judge referred [in his report] are factors which had already been taken into account (quite properly) in the setting of the sentences for the substantive offences before aggravation. We do not consider that they can properly be used again to justify the imposition of a further one year’s imprisonment in respect of the aggravations.”  
He added: “There are many crimes and offences which do not, of themselves, necessarily involve a connection with serious organised crime. For example, murders, assaults, threats, abductions, certain firearms offences, and many other criminal activities may occur without a connection with serious organised crime. 
“In such cases, it seems to us very possible that an aggravation in terms of section 29 of the 2010 Act may appropriately result in a longer sentence than that which the court would have imposed if the offence were not so aggravated. We do not suggest that this will necessarily or always result, but it may do so.  
“However, when the same features that are taken into account when setting the sentence for a substantive offence are also taken into account in considering whether to impose a different sentence to reflect the aggravation, it may be more difficult to justify imposing a longer sentence to reflect the aggravation.”
“In the present two appeals,” the court concluded, “it does not appear to us that there were any additional factors taken into account in relation to the aggravations which had not properly been taken into account in determining the sentences for the substantive offences. We consider that this does indeed amount to an element of ‘double counting’. 
“For these reasons, we shall quash that part of each sentence (amounting to imprisonment for one year) relating to the section 29 aggravation. We shall therefore substitute a sentence of seven years six months imprisonment from 20 November 2017 for Mark Simpson, and five years six months imprisonment from 20 November 2017 for Lee Wallace.”  
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