Cannabis ‘gardener’ who claimed he was human trafficking victim fails in appeal against sentence 

Trung Dung Le claimed he was a victim of human trafficking who had been forced to commit the offences, but the Appeal Court of the High Court of Justiciary ruled that the fact that defence agent failed to put forward a sufficiently detailed and compelling plea in mitigation did not render the sheriff’s disposal “excessive”.

Lord Brodie and Lord Turnbull heard that the appellant pled guilty at a trial diet at Aberdeen Sheriff Court in January 2019 to charges (3) and (4) on an indictment: namely (3) being concerned together with others in the supplying of cannabis between 19 June and 3 July 2018 in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971; and (4) together with others and over the same period, producing cannabis in contravention of section 4(2)(a) of the 1971 Act.

Having deferred sentence for the preparation of a criminal justice social work report (CJSWR) and having heard a plea in mitigation, the sheriff sentenced the appellant to three years’ imprisonment, discounted from four years for the plea.

However, the appellant appealed against sentence, arguing that the sheriff “failed to attach sufficient weight” to his personal circumstances.

‘Significant growing operation’

The appellant had told the author of the CJSWR that he had been working in China in 2009 when he was “forcibly removed” with other Vietnamese nationals, via Russia, to France before being trafficked to the UK.

He said he had been “kept against his will” and forced for around ten years by a “gang” to look after cannabis plants at various locations, without financial gain and in fear for his own safety and that of his wife and child in Vietnam.

He said he had attempted to escape on two occasions but each time he was caught and “beaten up”.

The Crown narrative stated that the appellant and a co-accused were found during a search of a property in Aberdeen, where a “significant growing operation” was in progress.

A total of 440 juvenile and 587 mature cannabis plants were found, with a potential combined street value of between £225,000 and £831,000.

The appellant was taken to the locus and that his task as a “gardener” was to water the plants, for which he was due to be paid £500 per month, but he had not received any money and he claimed he was “too frightened” to attempt to flee the address.

The sheriff was however advised that the Home Office had rejected the appellant’s claims of human trafficking / slavery, servitude and forced or compulsory labour.

‘Powerful mitigation’

In mitigation, the sheriff was referred to the CJSWR, but was advised that the appellant’s position fell short of coercion although he had acted under threat of violence.

The sheriff had regard to the guidance provided by the Appeal Court in the case of Lin v HM Advocate 2008 JC 142 in determining the appropriate sentence.

However, it was argued that, given the circumstances of the appellant, and given the fact that neither the advocate depute nor the court had questioned the appellant’s mitigation, the sheriff should have exercised her discretion to reduce what would have have been the normally appropriate sentence.

Referring to the case of Quyen Van Phan v HM Advocate 2018 JC 195, it was submitted that the fact that an accused had been trafficked may provide “powerful mitigation” even although the defence of coercion has not been made out.

The sheriff had been pointed to the CJSWR, but failed to give any weight to the appellant’s history of being trafficked into the UK and through “violence and intimidation” having come to commit the offences to which he had pled guilty.

Having not challenged what was said to her by the defence agent the sheriff was “bound to accept its veracity” and therefore should have reflected the mitigation provided by the appellant’s status as a victim of human trafficking by reducing the length of the sentence imposed below a range indicated by the guidance given in Lin.

‘Lenient sentence’

Refusing the appeal, the judges observed that the appellant’s claim that he was a victim of human trafficking was “controversial” and that the sentence imposed could be regarded as “lenient”.

Delivering the opinion of the court, Lord Brodie said: “We accept the proposition, generously vouched by authority in the note of argument on behalf of the appellant, that when primary facts are put before the court by way of mitigation then, if they are not inconsistent with the plea of guilty or any agreed narrative of events, and they are not manifestly absurd, unless he or she challenges them and affords the convicted person the opportunity of a proof in mitigation, the sentencing judge will usually be obliged to proceed on the basis that what has been put forward in mitigation is true and therefore have regard to it in determining sentence. However, we do not accept that that proposition has much application to the circumstances in the present case.

“The Crown narrative was agreed. The appellant’s account of having been trafficked, as it appeared in the CJSWR, was referred to but it was not put forward as a significant strand in mitigation…Now, the appellant and his legal representative were not bound to accept the views of the Crown and the competent authority, but if the sheriff was expected to ignore these views they had to lay before her a basis which would allow her to do so. 

“That might have been done through the medium of a proof in mitigation or it might have been done through the medium of a sufficiently detailed, specific and therefore compelling plea. Neither course was followed. Rather, the defence agent chose to rely on the account that the appellant had given to the author of the CJSWR. That account was vague, lacking circumstantial detail and raised more questions than it answered.”

“Critically,” he added, “the account recorded in the CJSWR contained nothing specifically to support the proposition that he had been compelled to commit the particular offences which were the subject of the instant charges, namely being concerned in the supplying of cannabis and producing cannabis at a particular address in Aberdeen over a particular period in June and July 2018. 

“Lest there be any doubt, we make no criticism whatsoever of the author of the CJSWR for the sketchy nature of the appellant’s history. It was no doubt sufficient for her purposes. It was not her responsibility to present a plea in mitigation. That was the responsibility of the defence agent. 

“If it was his intention to make something of the appellant being a victim of human trafficking and in particular of the appellant having been compelled or at least pressured to commit the offences to which he had pled guilty, then he should have obtained the instructions from the appellant in order to allow him to do so. For whatever reason, he chose not to do that. 

“In conclusion, the short answer to the criticism that the sheriff failed to have regard to material, the content of which was sufficient to sound materially in mitigation so as to bring the sentence below what would ordinarily be the appropriate range, is that there was no such material put before her. 

“We do not consider that the sheriff’s approach to the information which was put before her has resulted in the imposition of a sentence which was excessive in the circumstances; indeed the sentence imposed might be regarded as lenient.”