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Monday, March 19th, 2018

Appeal against Sentence by Ashley Whiteford against Her Majesty's Advocate [2018] HCJAC 13

This appeal against sentence related to a 42-month custodial sentence received by the appellant, following a guilty plea at Ayr Sheriff Court, in respect of the possession and intent to supply of a Class A drug.

Claire Mitchell of Compass Chambers represented the appellant.

The comments of the Court are of interest as they confirmed the guidance to be followed by a Court following a plea in mitigation, which is summarised in the recent appeal cases of Andrew Sinclair v HM Advocate and Anthony Stewart v HM Advocate, whereby if a Court considers the mitigating circumstances advanced by an accused to be implausible, or doubts its veracity for any other reason, then the accused must be advised and afforded the opportunity to establish those circumstances by way of proof in mitigation.  If the Court fails to do so, and if the proffered mitigation is not manifestly absurd, then the Court will usually be obliged to proceed on the basis that what has been put forward in mitigation is true

In light of the Sheriff’s failure to follow that guidance, and failure to take proper account of the adverse effect on the accused’s children or provide justification for not allowing a discount to reflect the accused’s plea of guilty, the Appeal Court quashed the original sentence and substituted it with a sentence of 30 months imprisonment, that being discounted from a starting point of 33 months to reflect the plea of guilt.

To read the Opinion of the Court, please click here.

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