APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Philip	[2014] HCJAC 66 XC527/13   OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE   by   RIO SHAKILAH THOMAS, Appellant;   against   HER MAJESTY’S ADVOCATE, Respondent:   _______________

 

Act:  S Collins, Solicitor Advocate; Capital Defence (for Caird Vaughan, Dundee)

Alt:  I McSporran AD; the Crown Agent

 

5 June 2014

Introduction

[1]        On 27 August 2013, at the Sheriff Court in Peterhead, the appellant was convicted of being concerned in the supply of heroin (charge 1) and cocaine (charge 2) on 17 January 2011 at an address in Urquhart Road and in a guest house in King Street, both Aberdeen, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.  The sheriff sentenced her to a total period of 3½ years imprisonment. 

[2]        The appellant was initially indicted with a female co-accused, TB, on both charges, but she failed to appear at a first diet on 6 September 2011; an offence to which she pled guilty and was admonished (presumably because of the period on remand).  TB went to trial in July 2012 and was convicted.  She was a first offender and was made the subject of a Community Payback Order with a supervision requirement of 2 years.  Her conviction was a matter of admission in a joint minute lodged during the Crown case at the appellant’s trial.

 

Evidence
[3]        The circumstances of the offence were that, at about 2.30pm on 17 January 2011, the police forced entry into the property on Urquhart Road, in execution of a search warrant.  The appellant and TB were found in the property, although it was tenanted by someone else, SC.  The appellant was found in the kitchen, from where various items were recovered.  These included “wrapping”, a pipe, a coaster with a substance on it, and a razor blade on top of the coaster, also with a substance on it, on a table and 2 sets of scales underneath the sink.  This was evidence that there had been drug use on the premises.

[4]        TB was searched and found to be in possession of some 16 packets of heroin and 10 packets of cocaine, all of which were hidden in a trouser leg.  The appellant was also searched.  No drugs were found on her.  She did have a black Nokia phone, but, of more significance, she had a set of keys to room 5 of the guest house in her jacket pocket.  In a purse in the livingroom, which contained the appellant’s driving licence, and which was therefore inferred to be hers, were found £600 in cash and a receipt from the guest house for £50 made out to a fictitious third party.  She also had a Blackberry in her jacket pocket.   

[5]        At about 5.40pm, the police carried out a search of room 5 of the guest house and recovered a shoulder bag containing some 22 packets of heroin and 74 packets of cocaine.  The totality of the drugs recovered in both properties was valued at £4,580.  The owner of the guest house testified that she had let room 5 to two young females, and had given them one set of keys. 

[6]        There was general police evidence that the most usual scenario for a drug dealing operation in Aberdeen was that the dealer would arrive in the city and pay a drug user for the use of his property for the purpose of dealing drugs.  It was normal for the dealer to maintain a stash of drugs in a bed and breakfast establishment to prevent its easy discovery.  Different people might be responsible for carrying the drugs to Aberdeen, keeping the drugs in the “safe house”, and looking after the drugs at the house where the dealing took place.  The drugs found on TB, and those recovered from the guest house, were possibly from the same batch.  When large quantities of drugs were found, it was usual to find large quantities of money too.

[7]        At the close of the Crown case, under reference to Lees v HM Advocate 2012 SLT 924; Bath v HM Advocate 1995 SCCR 323; and White v HM Advocate 1991 JC 137, the appellant submitted that there was no case to answer.  The sheriff repelled that submission.  The sheriff’s report states that it could be inferred that the appellant was one of the two females who had booked into room 5.  The basis for that inference was in part the conviction of TB for being concerned in the supply of drugs from, inter alia, room 5.  In addition, the appellant was found in TB’s company and was in possession of the key to that room.  There was no apparent reason, according to the sheriff, for the appellant to have been at either address and £600 cash was found in her possession.  Accordingly, the sheriff reasoned that there was adequate evidence of concern in the supply by both accused.

 

Submissions
[8]        The basis of the appeal, as amended, is that the sheriff erred in repelling the submission of no case to answer.  This contention was originally only a general one that there was insufficient evidence that the appellant had knowledge, possession or control of the drugs, or any knowledge that any supply operation was taking place (Lees v HM Advocate (supra)).  Other persons had had access to room 5 in the guest house and there was no evidence of who had owned the bag in that room.  No drugs had been found on the appellant and she had made no admission, nor shown any reaction, at the arrival of the police in Urquhart Road.  Secondly, in terms of an amendment to the Note of Appeal, it was said that the sheriff ought not to have had regard to the existence of the conviction when drawing inferences and arriving at his decision (HM Advocate v Duffy 2009 SCCR 20; and Howitt v HM Advocate 2000 JC 284).

[9]        This second proposition was not one which had been raised with the sheriff at the stage of the no case to answer submission.  The court allowing the amendment did not consider it prudent to obtain the sheriff’s comments on the matter.  However, although the court does not have the sheriff’s comments, it would appear that the conviction was introduced into the evidence in order that the appellant’s incrimination of the co-accused might be bolstered by its existence.  The co-accused was not called to give evidence.

 

Decision
[10]      There was ample evidence that the appellant was concerned in the supplying of both heroin and cocaine.  She was found to have direct links to two separate addresses at which the same two drugs, possibly from the same original batch, were found in significant quantities in close proximity in time to each other.  The appellant was first found at the Urquhart Road address, which was a drug user’s tenancy, with her former co-accused, who was in possession of drugs.  The appellant herself was in possession of £600 in cash, the source of which, at the no case to answer stage, had not been explained.  Secondly, the appellant had the keys to, and the receipt for, the guest house room.  It was a legitimate inference that she was one of the two persons who had rented the room in which the stash of drugs was found.  In addition, there was evidence that this scenario was consistent with the norm of a stash being held at a bed and breakfast establishment and dealing from another house taking place with different persons having different roles in that exercise. 

[11]      It is true that the fact of a co-accused’s conviction cannot competently be used at the trial of a different accused in order to demonstrate that the co-accused had committed the offence (HM Advocate v Duffy 2009 SCCR 20, LJG (Hamilton) at para [22]).  In that respect, the sheriff was wrong to draw any inference from the existence or content of the conviction.  However, the court understands why the sheriff was prompted to do that, given that the parties had agreed to present this material to the jury in the course of the Crown case.  Be that as it may, even without the existence of the conviction, there was sufficient evidence for the jury to infer that the appellant was concerned in the supply of the drugs on both charges.  Accordingly the appeal against conviction is refused.

 

Sentence
[12]      The appellant is now aged 22 and the limited information, which the court has, is that she is from London and on the particular occasion had travelled to Aberdeen with the co-accused.  The appellant has two analogous convictions in London in 2009 for possession with intent to supply both cocaine and heroin.  The court has been told that these two convictions arose out of the same arrest.  They attracted separate detention and training orders of 12 and 6 months respectively.  As already noted, the co-accused received a Community Payback Order, but little is known about the co-accused other than that she was a first offender. 

[13]      The contention is that the custodial term was excessive, having regard to the limited value of the drugs and the limited period and places in the libel.  In addition, it is said that the level of disparity of sentence between the appellant and the co-accused did not properly reflect the distinction to be made between them.  The sheriff, who sentenced the appellant, was not the same as the sheriff who had sentenced the co-accused and he comments that the principle of comparative justice can only truly operate where the same sheriff is involved.  The sheriff had no information on the co-accused’s background and he reached the view that, although the co-accused appeared to have been treated leniently, that did not mean that the appellant should be so treated given her record.

[14]      The principle of comparative justice must apply as between co-accused convicted of the same offences, whether or not the same sheriff is involved.  Thus, a previous sentence on a co-accused, in any case, must be a factor to be taken into consideration when sentencing another accused subsequently on the same charges.  However, there is a material distinction between the appellant and the co-accused in this case, notably that the co-accused had no previous record and this appellant has a substantial analogous one.  Standing the previous convictions of the appellant and the value of what are Class A drugs, the court is unable to classify this sentence as excessive and it must therefore also refuse the appeal against sentence.