Scottish High Court of Justiciary Decisons

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Cite as: [2018] ScotHC HCJAC_13, [2018] HCJAC 13

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Lord Menzies

Lord Turnbull

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2018] HCJAC 13

HCA/2017/000571/XC

OPINION OF THE COURT

delivered by LORD MENZIES

APPEAL AGAINST SENTENCE

ASHLEY WHITEFORD

against

HER MAJESTY’S ADVOCATE

Appellant

Respondent

Appellant: CM Mitchell; Faculty Services Limited, Edinburgh for Bridge Litigation, Glasgow

Respondent: M Hughes, AD; Crown Agent

9 January 2018

[1] The appellant Ashley Whiteford pled guilty at a trial diet at the sheriff court at Ayr

on 21 August 2017 to a charge of possessing diamorphine, a Class A drug, on one day in

September 2016 with intention to supply it to others in contravention of section 5(3) of the

Misuse of Drugs Act 1971. The maximum street value of the drugs recovered was £6,780.

Having obtained reports, on 14 September 2017 the sheriff sentenced her to 42 months

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imprisonment. The appellant now appeals to this court against that sentence as excessive.

On her behalf it was accepted that the offence required a custodial disposal but it was

submitted that the sentence of 42 months was excessive.

[2] The appellant is aged 36 and before sentence she looked after her two children

aged 5 and 9. She has one analogous previous conviction in 2010 for breach of the Misuse of

Drugs Act for which she was sentenced to 32 months imprisonment. She has not offended

since then. Before us it was argued on behalf of the appellant that she had committed this

offence because she was placed under pressure and she had mental health difficulties which

rendered her vulnerable. It was pointed out that she had been out of trouble for the last

7 years and that she had weaned herself off drugs use. Moreover her children will be

adversely affected by such a long period of custody, and there is no indication in the

sheriff’s report that he has considered the possibility of applying a discount to reflect the

plea of guilty which was tendered one week before the trial diet. Despite the fact that this

was raised as an issue in the Note of Appeal the sheriff gives no comment about this to

explain his positon on discount in his report to this court.

[3] We should at the outset express some concern about the way in which the sheriff has

approached the plea in mitigation. The appellant instructed the solicitor acting on her behalf

to give an explanation for her possession of these drugs from which she then departed.

However, the sheriff tells us that she continued to assert through her solicitor that the drugs

which had been recovered by the police had only been in the dwelling house for 10 minutes

before the search commenced. The sheriff goes on in his report to state that he did not

accept the appellant’s contention that the drugs had only been in her house for 10 minutes

before the police arrived to search the house. He said this is completely at odds with the

information given by the police to the sheriff who granted the search warrant, which was to

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the effect that the appellant had been dealing diamorphine from the locus for several weeks

before the search took place. He goes on to say “the appellant struck me as a person who

would lie through her teeth to any extent which she thought necessary to minimise her

involvement in this crime.”

[4] We are concerned that these observations of the sheriff and the way in which he has

approached the plea in mitigation run contrary to the longstanding guidance of this court,

which has been most recently summarised in two cases on appeal, namely, the case of

Andrew Sinclair v HM Advocate [2017] HCJAC 88 and Anthony Stewart v HM Advocate

[2017] HCJAC 86. We refer in particular to paragraph [9] of the Opinion of the Court delivered by

Lord Brodie in Anthony Stewart in which the court referring to the Opinion of the Court in

McCartney v HM Advocate 1998 SLT 160 observed:

“We are immediately persuaded that the sheriff erred in his rejection of the

mitigation offered in respect of charge 2 which was the most serious of the charges to

which the appellant pled guilty. As is made very clear in the recent case of Ross, a

sentencing judge is not bound to accept the veracity of what is advanced by way of

mitigating circumstances, even where it is not inconsistent with a guilty plea and

where it is not challenged by the Crown, but if the judge considers an account to be

implausible or if he doubts its veracity for any other reason then as a matter of

fairness and procedural propriety he must so advise the accused and afford the

accused the opportunity to establish what he asserts by way of proof in mitigation. If

the judge does not do that, and the proffered mitigation is not manifestly absurd,

then he will usually be obliged to proceed on the basis that what has been put

forward in mitigation is true: McCartney at 162.”

It does not appear to us that the sheriff in this case has followed the guidance in McCartney.

[5] We also consider that there is force in the last two points advanced on behalf of the

appellant, namely, the adverse effect on the children and the absence of any expression of a

discount to reflect the plea of guilty. It is a necessary part of the matters to which a

sentencer requires to have regard to consider the possible consequences of any particular

sentence on children who may be affected. The sheriff states in his report to us that he took

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account in the present case of the effect that 42 months imprisonment may have on the

appellant’s children but he does not expand or elaborate on this statement. It does not

appear to us that he has attached much, if any, weight to this factor. He should have done

so. Moreover, the sheriff in his report does not address the issue of any discount which

might fall to be applied to reflect the plea of guilty, albeit that this was tendered at a very

late stage at, or very shortly before the trial diet itself. Given the lateness of the plea it might

have been open to the sheriff to apply no discount at all, or to apply a minimal discount.

However, the matter having been specifically raised in the Note of Appeal, it was in our

view incumbent on the sheriff to address this point in his report.

[6] Having regard to these factors, and to the fact that the time libelled for this offence

was only one day, we consider that the sentence of 42 months selected by the sheriff was

indeed excessive. We will therefore quash that sentence and substitute a sentence of

30 months imprisonment, that being discounted from a starting point of 33 months to reflect

the plea of guilty.