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Successful Appeal Against Sentence on the Grounds of “Coerced” into Committing the Offence

HMA V ANDREW SINCLAIR 2017

Mr Sinclair, who was jailed for 33 months after pleading guilty to being concerned in the supply of cannabis has had his sentence reduced. On appeal a sentence of 27 months was imposed after ruling that the Sheriff had failed to take the appellant’s plea in mitigation in to account which stated he had been “coerced” into committing the offence. Mr Sinclair pled guilty at a First Diet at Aberdeen Sheriff Court to being concerned in the supplying of the class B drug, after being found on a motorway with the drug to a value of about £10,000 by police.

The appellant’s explanation was that he had a long drug habit and had a heavy drug debt. He was given the opportunity to clear the debt by acting as a courier for drug lords. He declined but was then physically assaulted and hospitalised. Threats were also made to his family it was alleged. Therefore, he took this on under coercion. However, Mr Sinclair appealed on the grounds that the Sheriff erred by the selection of a headline sentence which was “too high”. A 36-month sentence was “excessive”, this already being a reduced sentence in light of his early plea. On appeal, judges held that the custodial term 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.

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.

He outlined that the Sheriff did not state that he did not accept the appealants plea in mitigation and this on appeal it must be taken as truth. Concluding, “on the appellant’s account, which we must accept, he was subject to quite severe pressure, including being seriously assaulted.” Therefore, sentence was reduced.

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