HMA v Ryan Ferguson, Paul Mackenzie and Andrew Smith

At the High Court in Edinburgh today, 22 February 2017, Lord Boyd of Duncansby sentenced Ryan Ferguson, Paul Mackenzie and Andrew Smith to 12, 14 and 18 months’ imprisonment respectively, after the three accused each pleaded guilty to being involved in the supply of amphetamine.

On sentencing, Lord Boyd made the following statement in court:

“You have each pleaded guilty to being involved in the supply of amphetamine, a class B drug on a single day in May 2015. The quantity is not far short of 2 kilos and it has a maximum value on the street of over £50,000.

You Andrew Smith, were the person who drove the car containing the drugs. It was delivered to Ferguson and Mackenzie. A sum of over £27,000 in cash was found in Smith’s car.

I am in no doubt that this was a significant drugs operation albeit related to only one day. You Ferguson and Mackenzie were each to receive £1000 and you Smith say you were offered a couple of hundred pounds. 

In short this was an operation involving a significant amount of class B drugs with a reasonably high potential street value. Each of you became involved for financial gain albeit that the amounts involved were modest.

Given that background a community disposal would be a wholly exceptional course for me to take and I am not persuaded for the reasons that I shall give that I should accede to that suggestion.

On the other hand in each case there are reasons for optimism and I take into account the fact that this has been hanging over each of you for some two years. Accordingly I am persuaded that in each case I should exercise a degree of leniency.

Ryan Ferguson, you have a short record of offending but three out of the five previous convictions show a relationship with cocaine and you have a history of drug misuse. The criminal justice social work report (CJSWR) however is largely positive and the author was obviously impressed that you appear to have matured since your last involvement with him in 2015.

I have listened carefully to what was said on your behalf. I note that you have given up drugs and have not been involved in offending in recent times. I also take into your personal circumstances.

I shall sentence you to 12 months’ imprisonment from today’s date. Had you been convicted after trial I would have imposed a sentence of two years’ imprisonment of which three months is attributable to the bail aggravation.

In view of the offer of a plea at the preliminary hearing I discount the sentence to one of 18 months. I further reduce that sentence by 6 months to take account of the time spent on remand.

Paul Mackenzie, on the facts of this case there is nothing to distinguish between you and Mr Ferguson. However in contrast to him you have a lengthy record of offending going back to 2004.

While I accept that none of them are analogous they include 1 conviction on indictment and other quite serious offences. That might suggest a longer sentence in you case.

I have heard an eloquent plea on your behalf that there are exceptional circumstances which would allow me to exercise my discretion and not impose a custodial sentence. The CJSWR is in positive terms.

I have received a number of testimonials on your behalf outlining your excellent work in the community. I take into account your personal and family circumstances.

I am not however persuaded this is sufficient for me dispose of the matter by a non-custodial disposal. However, I am persuaded that as with Mr Ferguson I should exercise a degree of leniency.

Had you been convicted after trial I would have imposed a sentence of 21 months’ imprisonment. That is the same starting point as Mr Ferguson but without the bail aggravation.  

In view of the offer to plead by s 76 letter I shall discount the sentence to 14 months’ imprisonment from today’s date.

Andrew Smith, you have only one minor charge libelled against you though I am aware that you have just completed a sentence of 16 months’ imprisonment. You were also subject to two bail orders at the time of this offence.

There are grounds for optimism in your case. You have a good work record. You have accepted responsibility for your actions.

You have come to offending late in life. You have just completed a prison sentence which Mr Farrell says you did not find easy.

Although your role was different to those of your co-accused I see no particular reason to distinguish you from the others.

Accordingly had you been convicted after trial I would have imposed a sentence of two years’ imprisonment, of which three months would have been attributable to the bail aggravation.

In view of the plea offered some considerable time before the trial diet I shall discount the sentence to one 18 months’ imprisonment.”