Ashley Whiteford v. Her Majesty’s Advocate [2018] HCJAC 13

Note of appeal against sentence:- On 21 August 2017, at Ayr Sheriff Court, the appellant pled guilty at a trial diet to a charge on indictment of having in his possession a quantity of diamorphine with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971. After obtaining a Criminal Justice Social Work Report the sheriff sentenced the appellant to 42 months imprisonment. The appellant appealed against the sentence imposed on the grounds that it was excessive, albeit it was conceded that a sentence of imprisonment was appropriate in light of the nature of the offence. The circumstances of the offence were that the offence related to a single day with a maximum street value of the drugs being £6780. It was submitted on behalf of the appellant that she had mental health difficulties which made her vulnerable and that she had been placed under significant pressure to commit the offence. In addition, the appellant had not been in any trouble for 7 years and she had two young children who would be adversely affected by the appellant receiving such a long period of imprisonment. It was further submitted that the sentencing sheriff had erred in failing to allow a discount for the plea at the trial diet. Here the court allowed the appeal against sentence. The court expressed concern in relation to how the sentencing sheriff approached the mitigation which had been advanced on behalf of the appellant. It had been the appellant’s position that the drugs which were recovered by the police had only been in her house for 10 minutes before the police arrived to commence the search. The sheriff stated in his report to the court that he did not accept the appellant’s account of how long the drugs had been in the house and considered that she had lied in a bid to minimise her involvement. Here the court reiterated the guidance of the court that where an account is provided in mitigation and the sentencer has doubts about the truthfulness of it then the accused should be provided with an opportunity to establish it via a proof in mitigation. If the sentencer does not allow that and, provided the position offered is not manifestly absurd, then the sentencer ought usually to proceed on the basis that what has been offered in mitigation is true. The court also considered that the sheriff should have given consideration to the adverse effect on the appellant’s young children. In relation to the issue of discount the court observed that whilst it would have been open to the sheriff, in light of the plea coming so late in the day, not allowing any discount to the sentence imposed, the sheriff had not addressed the point in his report to the court. In all of the circumstances the court considered that the sentence of 42 months was excessive and quashed it and substituted a sentence of 30 months, discounted from 33 months on account of the plea of guilty being tendered at the trial diet.