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Appeal following a reference from The Scottish Criminal Cases Review Commission by Ly Quang Huynh against His Majesty's Advocate (High Court of Justiciary)

Smart Summary

Anonymised Summary of Opinion

Factual and Procedural Background

This opinion was delivered by Judge Beckett on an appeal following a reference by the Scottish Criminal Cases Review Commission. The Appellant pleaded guilty at a High Court diet to two charges of being concerned in the supplying of cannabis under the Misuse of Drugs Act 1971. Charge 1 related to an incident on The Motorway in which 29kg of cannabis and cash were recovered from a taxi; the Appellant's fingerprints were found on multiple vacuum-sealed packages. Charge 2 related to events at The Flat and The Street where a total of over 30kg of cannabis, scales, notations and large sums of cash were recovered; the Appellant's fingerprints were found on scales and multiple packages and he was seen communicating with occupants of a vehicle that arrived. The maximum potential sale value of the drugs was recorded in the agreed narrative.

The Appellant was remanded and on sentence (after an adjournment for a justice social work report) received a cumulative term of imprisonment of 6 years and 3 months, reduced for a plea of guilty. The Commission referred the case on the ground there may have been a miscarriage of justice; the Appellant lodged a note of appeal raising the judge's application of an English sentencing guideline and the alleged excessive nature of the sentence. This court refused leave at sift stages before the Commission's referral resulted in the present appeal.

Legal Issues Presented

  1. Whether the sentencing judge misapplied an English Sentencing Council guideline (by reference to the class A table rather than the class B table) and thereby imposed an excessive sentence.
  2. Whether, viewed in the round, the sentence of 6 years and 3 months was excessive such that there was a miscarriage of justice.

Arguments of the Parties

Appellant's Arguments

  • The sentencing judge applied the wrong part of an English guideline (class A rather than class B for cannabis), producing a starting point more than double the correct guideline starting point and an excessive headline sentence.
  • The Appellant's age, family responsibilities, guilty pleas and history (including an earlier English sentence) meant the final sentence was excessive and amounted to a miscarriage of justice.

Appellee's Arguments

  • The Crown did not advance submissions on the merits of excessiveness but corrected factual points: the Appellant accepted he was not a victim of trafficking per the National Referral Mechanism decision and the Appellant had a prior drugs conviction in England.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Barnes v HM Advocate [2024] HCJAC 23, 2024 JC 364 Explains how the court resolves whether to interfere with a sentence on appeal (excessiveness). Used as the framework for assessing whether the sentence amounted to a miscarriage of justice.
HM Advocate v Bell 1995 SCCR 244 Lens applied where Crown maintains a sentence unduly lenient — whether sentence falls outside the range a judge could reasonably consider appropriate. The Commission applied this approach in analysing excessiveness; the court noted this as a relevant analytical method.
HM Advocate v Collins [2016] HCJAC 102, 2017 JC 99 Where no Scottish sentencing guideline exists, the first resort is relevant Scottish appellate precedent. Cited to support the approach that Scottish precedent is primary and English guidelines are only a cross-check.
HM Advocate v Graham [2010] HCJAC 50, 2011 JC 1 Observation that English guidelines can provide relevant guidance where offences derive from UK statute with same maximum penalties. Referenced in submissions on the general relevance of English guidelines.
Sutherland v HM Advocate [2015] HCJAC 115, 2016 SCCR 41 Support for considering English guidelines as relevant guidance in appropriate cases. Referenced in submissions regarding the utility of English guidelines.
Beveridge v HM Advocate [2025] HCJAC 23 Authority on when an appeal against sentence must succeed if the sentence is excessive. Invoked to support the proposition that if the sentence is excessive the appeal must succeed.
Lin v HM Advocate [2007] HCJAC 62, 2008 JC 142 Guidance (s 118(7) Criminal Procedure (Scotland) Act 1995) and on reserves of higher ranges for more serious cases; sentencing ranges for substantial cannabis operations. Applied as important Scottish authority on sentencing for substantial cannabis-related offending and on starting points.
McFadyen [2012] HCJAC 73 Example where, given quantity and record, a higher headline sentence was appropriate for cannabis resin. Used for comparative purposes on quantities, values and appropriate headline sentences.
Ketuka v HM Advocate [2025] HCJAC 25, 2025 JC 354 Endorses relevance of Lin and commentary on cannabis sentencing. Noted as supporting the continued relevance of Lin.
Hibbard v HM Advocate [2010] HCJAC 111, 2011 JC 149 There is no warrant for assessing a headline adult sentence and then applying an arithmetic percentage discount for youth; proper assessment requires evaluating culpability and harm. Cited to reject the approach of applying an adult headline sentence then reducing by a fixed percentage for youth.
Dunn v HM Advocate [2023] HCJAC 34, 2024 JC 51 Reinforces correct approach to sentencing young people under the Scottish guideline. Used to support the proposition that age requires individualized assessment, not simple arithmetic discounts.
HM Advocate v O'Doherty [2022] HCJAC 31, 2022 JC 253 Principles on fixing notional commencement dates and remand credit for long-term sentences. Cited for the proposition that the judge should have selected an appropriate sentence with a notional commencement date rather than reducing by months of remand.
Gemmell v HM Advocate [2011] HCJAC 129, 2013 JC 223 Principles on reduction for guilty pleas: utilitarian value, timing, and that only token discounts may be appropriate where little witness anxiety is avoided. Applied to conclude that only a token discount was appropriate in this case given the utilitarian value of the guilty pleas.
Owens v HM Advocate [2022] HCJAC 29, 2022 SCCR 246 Illustrates individualized assessment under the "Sentencing young people" guideline. Referenced to support the approach to considering maturity and individual circumstances of young offenders.
Todd v HM Advocate 1999 G1.0024 Example sentencing outcome for substantial cannabis resin supply (fact pattern cited). Used as one of several comparative Scottish examples of sentences in cannabis cases.
Froude v HM Advocate 1999 G1.0025.1 Example: courier paid a small sum for moving cannabis resin; sentence noted. Used as a comparative example of sentencing for courier involvement.
McGinty v HM Advocate 2000 G1.0022.1 Example of substantial quantities and refusal of appeal against 7 years' imprisonment. Used as a comparative example of sentencing for large-scale supply over time.
Coe v HM Advocate 2001 G1.0025 Example: early plea, safe house role, sentence reduced; comparative fact. Used as a comparative example showing outcomes for particular roles and early plea.
Stewart v HM Advocate 2002 G1.0024.1 Example: supplying by providing safe house; appeal refused. Used as a comparative example.
Geddes v HM Advocate 2003 G1.0026.1 Example: courier for 3kg cannabis resin; sentence reduced on appeal. Used as a comparative example of sentencing for courier-type roles.
Marshall v HM Advocate 2006 G1.0026.3 Example: 8kg cannabis resin found; sentence adjusted on appeal. Used as comparative material on sentencing outcomes.

Court's Reasoning and Analysis

The court examined whether the judge's use of the wrong part of an English guideline produced an excessive sentence. It set out the proper approach: Scottish appellate precedent is the first resort where no Scottish sentencing council guideline exists; English guidelines may be used as a cross-check but require caution because of differences in offence scope, structure and sentencing practice (quantity v value emphasis).

The court accepted the judge had erred by consulting the class A table in the English guideline, and that the judge had also erred in (a) applying an arithmetical reduction for youth from an adult headline sentence, (b) allowing a larger than appropriate reduction for guilty pleas in these circumstances, and (c) reducing the sentence for remand by applying months' deduction rather than selecting a notional commencement date. The court analysed the facts of each charge separately (two distinct offences some nine months apart) and concluded the Appellant's role was at least "significant" and arguably at the upper end of that category under the English guideline descriptors (operational/management function, expectations of significant financial advantage, links to others).

Weighing errors and favorable discounts together, and comparing the two distinct offences against Scottish precedent (including Lin, McFadyen and other illustrative cases), the court found that the combined sentence of 6 years and 3 months was not excessive. The court emphasized that the judge's errors largely operated in the Appellant's favour and that the ultimate question is whether the final sentence was outside the range a reasonable sentencing judge could impose; it was not.

Holding and Implications

APPEAL REFUSED

Holding: The appeal against sentence was refused. The court held there was no miscarriage of justice and the cumulative sentence of 6 years and 3 months stands.

Implications: The direct effect is that the Appellant's sentence remains in force. The court endorsed the primacy of Scottish appellate precedent where available, cautioned careful use of English guidelines as a cross-check only, and reaffirmed principles on sentencing young people, reductions for guilty pleas and remand credit. No new general sentencing precedent was established; the decision applies established principles to the facts of these two distinct offences.

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Appeal following a reference from The Scottish Criminal Cases Review Commission by Ly Quang Huynh against His Majesty's Advocate (High Court of Justiciary)

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Appeal following a reference from The Scottish Criminal Cases Review Commission by Ly Quang Huynh against His Majesty's Advocate (High Court of Justiciary)
(Feb 6, 2026)