Andrew Sinclair v. Her Majesty’s Advocate [2017] HCJAC 88

Note of appeal against sentence:- On 4 July 2017, at a first diet at Aberdeen Sheriff Court, the appellant pled guilty to being concerned in the supply of cannabis resin on a single day in October 2016 contrary to section 4(3)(b) of the Misuse of Drugs Act 1971, whilst on bail. Following the obtaining of a Criminal Justice Social Work Report the sheriff imposed a sentence of 33 months imprisonment (including 6 months for the bail aggravation) which sentence was discounted from 42 months imprisonment on account of the plea of guilty. The appellant appealed against his sentence on the basis that, whilst it was accepted that a sentence of imprisonment was appropriate, the headline sentence was excessive having regard to the particular circumstances of the case. The circumstances were that the appellant was stopped in his car on the A9 and a package was found in the boot containing cannabis resin with a value of £10,000, which had the potential to realise £32,000 if further subdivided. It was the appellant’s position that he had a drug habit and had accrued a drug debt of £3,000 and he was offered an opportunity to clear the debt by acting as a courier and delivering the quantity of cannabis. It was the appellant’s position that he initially declined the offer which resulted in him being physically assaulted and hospitalised with a broken ankle and a threat was directed at his family. Here it was submitted on behalf of the appellant that the starting off point of 36 months was excessive. On behalf of the appellant reference was made to the English Definitive Guidelines which outline propose a step by step process by which the sentencer can arrive at a range of possible sentences which, if followed in the present case would result in a range between 26 weeks and 3 years custody with a starting figure of 12 months. Here the court considered that a starting figure of 12 months was not consistent with Scottish practice and the court noted that counsel for the appellant had been unable to point to any Scottish authority where the English Guidelines had been used in respect of a case of contravening the Misuse of Drugs Act 1971 in Scotland. The court considered that 36 months imprisonment could not be said to be an excessive sentence for being concerned in the supply of £10,000 of class B drugs even where it was restricted to a single day and the appellant had no analogous previous convictions. The court did, however, allow the appeal as the appellant’s position that he had become involved in the offence due to coercion that had been applied in relation to an existing drug debt, had to be taken as true. When the plea had been tendered the position was advanced in mitigation and no specific contradiction was made of it by the Crown. In circumstances where the Crown is unable to confirm or deny a position advanced then the court cannot ignore any such position without offering a proof in mitigation. In the present case the sheriff had not indicated that he was not prepared to accept the position offered by the appellant and, as such, the court had to proceed on the basis that it was the truth. In the circumstances the court considered the effect that the pressure applied to the appellant had on the appropriate sentence. The court quashed the sentence imposed by the sheriff and substituted an alternative sentence of 21 months, discounted from 28 months, added to the 6 months imprisonment for the bail aggravation, making an overall sentence of 27 months imprisonment.