Drug courier wins appeal against sentence after sheriff failed to take into account ‘coercion’ in mitigation

Lord Brodie

A man who was jailed for 33 months after pleading guilty to being concerned in the supply of cannabis has had his sentence reduced following an appeal.

The Appeal Court of the High Court of Justiciary imposed a sentence of 27 months after ruling that the sheriff failed to take into account an “important” aspect of the appellant’s plea in mitigation, which was to the effect that he had been “coerced” into committing the offence.

Circumstances of the offence

Lord Brodie and Lord Drummond Young heard that the appellant Andrew Sinclair pled guilty at a first diet at Aberdeen Sheriff Court in July 2017 to being concerned in the supplying of the class B drug, in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 - a charge aggravated by the fact he was on bail at the time.

The court was told that the appellant was driving a car on the A90 when he was stopped by police, who found a package in the boot of the car containing cannabis resin with a value of about £10,000, which had the potential to realise approximately £32,000 if subdivided into small street level deals.

The appellant’s explanation for the offence was that he had a drug habit and had accrued a drug debt of almost £3,000.

He was offered an opportunity to clear the debt by acting as a courier, but having initially declined that offer he was physically assaulted and hospitalised.

After further threats were made against both the appellant and his family he eventually agreed to act as a courier.

‘Excessive sentence’

Having heard the Crown narrative of the circumstances and the plea in mitigation on behalf of the appellant, and having considered the Criminal Justice Social Work Report, the sheriff imposed a sentence of two years and nine months’ imprisonment of which six months was attributed to the bail aggravation; the sentence being discounted from what would otherwise have been a sentence of 42 months having regard to the guilty plea.

However, the appellant appealed on the grounds that the sheriff erred by the selection of a headline sentence which in the circumstances was “too high”.

It was specifically accepted on his behalf by advocate Craig Findlater that a custodial sentence was appropriate, it being acknowledged that the nature of the offence called for such a disposal.

But it was argued that a 36-month sentence was “excessive” in the circumstances of the case.

The appeal judges held that the custodial term selected was not excessive, but quashed the sentence imposed after ruling that the appellant’s plea in mitigation was not reflected in the sheriff’s decision.

‘Coercion may sound in mitigation’

Delivering the opinion of the court, Lord Brodie said: “Subject to a qualification to which we will come, we see it as being difficult to say that 36 months imprisonment is an excessive sentence for being concerned in the supplying of class B drugs with a value of at least £10,000, albeit only on one day and albeit where the offender has no analogous previous convictions.

“The qualification is this. An important, albeit not uncommon, feature of the present case is the appellant’s explanation that he only became involved in the offence due to coercion (in this case that coercion having gone the distance of an assault in which his ankle was deliberately broken and a threat was directed at his family) associated with a drug debt.

“Irrespective of the position adopted by the Crown, it would have been open to the sheriff to explain that he was not prepared to accept what was put forward on behalf of the appellant and to insist on a proof in mitigation if the appellant’s explanation was to be adhered to… He did not do that. Accordingly we consider what was put forward on behalf of the appellant as having to be taken as having been true.”

The judge added: “The proper course when faced with such coercion is to report the matter to the police but courts have recognised that where that course is not followed the fact that the offender acted under coercion may sound in mitigation…Here, on the appellant’s account, which we must accept, he was subject to quite severe pressure, including being seriously assaulted.

“We do not see that as a fact which is reflected in the sheriff’s decision-making. Accordingly, we have been persuaded to quash the sentence imposed by the sheriff and substitute an alternative sentence.

“We shall adopt the structure which the sheriff adopted, that is we shall start with a headline sentence in respect of the substantive offence but we will fix that headline at 28 months rather than the 36 months adopted by the sheriff; we shall reduce that by 25%, which is the same discount applied by the sheriff, to produce a figure of 21 months; to that we will add an undiscounted element of six months in respect of the bail aggravation.

“The result of that is to substitute for the sentence imposed by the sheriff a sentence of 27 months to run from the same date as that adopted by the sheriff.”