Hai van Le also known as Trung Dung Le v. Her Majesty’s Advocate [2019] HCJAC 44

Description

Note of appeal against sentence:- On 21 January 2019, at Aberdeen Sheriff Court, the appellant pled guilty on indictment to two charges:- (charge 3) being concerned in the supply of cannabis contrary to section 4(3)(b) of the Misuse of Drugs act 1971 over a two week period in 2018; and (charge 4) producing cannabis over the same period contrary to section 4(2)(a) of the 1971 Act. Following the obtaining of a CJSWR the sheriff sentenced the appellant to 3 years imprisonment backdated to the first day of his remand. The sentence selected by the sheriff was discounted by 12 months to reflect the plea of guilty. The appellant appealed against the sentence imposed it being contended that it was excessive, that the sentencing sheriff failed to attach sufficient weight to the personal circumstances of the appellant, in particular, the sheriff had failed to take into account that the appellant had been trafficked for the purpose of committing the offences to which he pled guilty, no exception being taken by the Crown or the sentencing sheriff to the appellant’s personal circumstances advanced to the court. Here it was submitted on behalf of the appellant that whilst the sentencing sheriff had regard to the guidance provided by the Appeal Court in Lin v HMA 2008 JC 142 she failed to have regard to what was said in Quyen Van Phan v HMA 2018 JC 195 and that if, as had been put forward without challenge, the appellant had been trafficked that would provide powerful mitigation even where the defence of coercion was not made out. It was submitted that if no exception was taken to the information which was tendered on the appellant’s behalf in relation to his personal circumstances then the court should have given effect to that and if the sentencing sheriff was unwilling to accept what was being put forward then the sheriff ought to have offered a proof in mitigation. It was submitted that in these circumstances where the appellant was acting under compulsion the sentence of 3 years imprisonment was excessive and ought to have been significantly less. Here the court refused the appeal. The court considered the guidance in relation to situations where it is said that victims of trafficking have been exploited through being compelled to engage in criminal activity. Here the court makes clear that not every cannabis farmer who has an irregular immigration history is a victim of human trafficking. The court referred to the safeguards in place where it is suspected that an accused is the victim of human trafficking and the obligations on the Crown to fully investigate. Here the court noted that the sheriff did not factor in to the sentence selected that he had been a victim of human trafficking and had been forced to look after cannabis plants by the criminal gang number but rather looked to the guidance in Lin in which the circumstances were similar albeit the number and value of the plants were significantly higher than in Lin. The court did not consider that the sheriff could be criticised for following the guidance in Lin in which it was said that large scale operations will ordinarily be in the range of 4 to 5 years imprisonment. The court did not consider that the fact the appellant’s position advanced during the plea in mitigation and referred to in the CJSWR went unchallenged was a significant factor. It was conceded on behalf of the appellant during the course of the plea in mitigation that what was being advanced on his behalf fell short of a defence of coercion. Whilst the CJSWR made reference to the appellant having been trafficked, in light of the Lord Advocate’s instructions to proceed with the prosecution that position had not been left unchallenged, indeed, the narration included the information that a reasonable grounds decision, under section 9 of the Human Trafficking and Exploitation (Scotland) Act 2015, had been made by the competent authority finding that there were not reasonable grounds to believe that he was victim of human trafficking. The court considered that the sheriff was unable to ignore that information and no information was placed before her for her to do that. The information placed before the sheriff was insufficient for her to proceed on the basis that he was not only a victim of human trafficking but that been compelled or at least pressured to commit the offences to which he had pled guilty.

Specifications