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HMA V James Davidson, David Mullarkey, Ellis Hardy, Wayne Smith
Feb 15, 2022
On sentencing Lord Boyd made the following statement in court:
"Serious organised crime poses a threat to us all. It damages the fabric of our society and challenges the rule of law. Each of you have pleaded guilty to being involved in serious organised crime and making an agreement with each other to further the commission of serious organised crime. The nature of that agreement was to arrange and facilitate the concealment, transportation of a controlled drug, namely cocaine. The minimum value of the drugs is between £1.2m and £3.6m. The maximum value at street level is just short of £10m.
The trafficking in class A drugs is a particular scourge to our society because its business model is based on the addictive qualities of the drug, in turn producing misery for individuals and communities. All of you have children and I hope that you have time to reflect on whether or not this really is the world you want them to grow up in.
James Davidson you transported 30 kilos of high purity cocaine concealed in a compartment in your HGV. It was taken to premises occupied by your business David Mullarkey, where they were transferred to a concealed compartment in a Transit vehicle driven by you Ellis Hardy accompanied by you Wayne Smith.
While each of you deny that there was much planning involved it is clear that there was in fact a significant level of planning.
While each of you had your own part to play in the execution of that agreement, all of you are responsible for the making of that agreement.
In determining the sentence I have first to consider the culpability of each of you and the harm that was caused or could have been caused. Had that quantity of drugs got on the street then the harm could have been very considerable. That can be measured both by reference to the health of individuals who might be affected by drug dependency but also by reference to the effects on society. I have no doubt that the introduction of such large quantities of drugs on the street would promote further criminal activity, social deprivation and adversely affect community cohesion.
With the exception of Mr Smith, I see little reason to distinguish between you in terms of responsibility for the agreement to further the commission of serious organised crime. It is clear that each of you played a vital role in the execution of that agreement.
I then have to consider the sentencing range. The Crown have accepted your pleas of not guilty to being concerned in the supply of cocaine. That means that the range of sentencing options open to me is limited by the maximum sentence for this offence which is 10 years.
In determining the seriousness of the offence I am bound to have regard to the nature of the agreement and what was actually done in furtherance of it. I also have regard to the quantity, purity and value of the drugs which formed part of this agreement and the level of planning that must have gone into the operation.
I also have to consider the purposes of sentencing. These include, punishment, rehabilitation and the protection of the public by deterring others who may be tempted to commit similar offences.
Having taken all these matters into account I am satisfied that my starting point for sentencing is towards the higher end of the range, where the maximum that could be imposed is 10 years.
Your part of the agreement was to transport the drugs in a concealed compartment in an HGV. You did so for money, but as I understood Mr Graham you had significant debt and the money was attractive to you.
You are 58 years of age. You have a good work record and a stable family background. You have a very minor previous conviction which I discount for present purposes. To all intents and purposes you have until now, led a productive and blameless life. You are assessed as being f low risk of further offending.
I accept that your conviction and subsequent imprisonment will have a significant impact on your family.
I take all these matters into account but the fact is that you were prepared to involve yourself in serious organised crime by agreeing with others to conceal, transport and distribute a very significant quantity of class A drugs.
Had you been convicted after trial I would have imposed a sentence of 7 years imprisonment. In view of the plea shortly before trial I shall discount that to one of 6 years 3 months.
You have been in custody since your conviction on 18 January 2022. You were remanded in custody from 24 June to 5 July 2019, a period of 11 days. I will deal with that by adjusting the start date of your sentence by backdating the notional start date to 7 January 2022.
Your part in this agreement was to allow your business premises to be used as a staging post where the drugs came in a concealed chamber in the HGV and were transferred to a concealed chamber in the Transit van.
The explanation for your involvement was that your business was in trouble and you sought to make some money to pay some debts. It is no doubt heart-breaking for someone who has invested time, money and effort in a building a business as you did to see it failing. Unfortunately businesses do collapse from time to time. People deal with it without resorting to serious organised crime.
You have settled family life. I have read the references submitted on your behalf, including from a family member. I note your health has suffered as a result of your involvement in this matter. I also accept that you present a low risk of further offending. You have 2 minor previous convictions which I discount for present purposes.
I have read I have taken all the factors listed by Mr Hughes into consideration. The fact of the matter is however, that you were prepared to agree with others to facilitate the concealment, transportation and distribution of a very considerable quantity of cocaine. On that basis I see little reason to distinguish you from others involved in this affair.
I shall sentence you 6 years 3 months imprisonment, discounted from 7 years for the early plea. As with Mr Davidson I shall backdate the sentence to 7 January 2022 to take account of the time you were on remand before your release on bail.
Your involvement in this matter was apparently to clear drug debts. Drug misuse has been a problem for you for some considerable time. The drugs were to be transported in your own Transit van which had been modified for that purpose.
Your previous convictions are more substantial than the others and include a conviction for racially aggravated assault for which you received a sentence of three years imprisonment. You have been imprisoned on a number of other occasions. You are assessed as being of moderate risk of re-offending.
I have taken the view that your record and risk does aggravate your culpability despite the fact that you have no convictions under the Misuse of Drugs Act.
Had you been convicted after trial I would have imposed a sentence 7 years 6 months. You offered to plead guilty at an early date and accordingly I shall discount the sentence in your case to 5 years. I shall backdate the sentence to 7 January 2022 to take account of the time you were on remand before your release on bail.
You became involved in this matter because of your cousin and your concern for him becoming involved in a criminal enterprise. I am prepared to accept from Mr Allan that you went along with Mr Hardy for moral and social support. However, you knew that your cousin was involved in drugs and that what he was being asked to do was to transport drugs. A better support for him would have been to tell him not to get involved at all, rather than help him. Nevertheless that your role was more limited and that you did not receive and did not expect to receive any financial reward. You also have a stable family life and good work record.
You have a short record accrued before 2010, including two short periods in prison. I do not consider it to be of importance in sentencing.
In your case the sentence is one of 4 years 6 months, discounted from 5 years. I shall backdate the sentence to 7 January 2022 to take account of the time you were on remand before your release on bail."