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AKAN FRASER AGAINST HER MAJESTY'S ADVOCATE

 

APPEAL COURT, HIGH COURT OF JUSTICIARY

 

Lady Paton

Lady Smith

[2015] HCJAC 27

HCA/2014-004764-XC

 

STATEMENT OF REASONS

 

delivered by LADY PATON

 

in

 

APPEAL AGAINST SENTENCE

 

by

 

ALAN FRASER

 

Appellant;

 

against

 

HER MAJESTY’S ADVOCATE

 

Respondent:

 

_____________

 

Appellant:  C Mitchell;  Gilfedder McInnes

Respondent:  A Brown QC AD;  Crown Agent

 

4 February 2015

[1]        This is a case where the appellant has worked full-time all his life.  He was a specialist plant hire technician engineer involved in supplying the railway system.  Regrettably his company was taken over, and the appellant became redundant.  Suddenly, from being a steady wage-earner, he did not know where the next weekly payment was going to come from.  Also, unfortunately, as is set out at paragraph 5 of the criminal justice social work report, he had acquaintances involved in the drug culture.  That resulted in his tending and producing cannabis plants, and being involved in their supply. 

[2]        The appellant has already been convicted of the production and supply of cannabis at a farm near Forfar.  In the present case the cannabis plants (at a different location) were valued at £18,000, with their production and supply taking place over a period of two months.  In these circumstances it is not perhaps surprising that the sheriff took a stern view of the circumstances:  but in our opinion, two matters arise.  First, we consider that insufficient weight was given to the mitigating circumstances;  and secondly, the sheriff does not indicate what the starting point would have been, even though he states that the sentence was adjusted for the cumulative effect of being a consecutive sentence following the two years, three months imposed for the Forfar conviction. 

[3]        In the circumstances it is our view that the cumulative effect of the sentence imposed by the sheriff (i.e. 42 months) added to the two years three months already being served, is too high.  In all the circumstances we consider that the same sentence as was imposed for the Forfar offence should be imposed for the current offence, i.e. two years three months.  We shall therefore quash the sentence of 42 months and substitute therefor a sentence of two years three months.  The appeal is allowed to that extent.