Attorney General's Reference Nos 13,17, 16, 15, 14 & 18 of 2004 [2004] EWCA Crim 1885

Case No 04/841-844-846-848-849-850-1473-1977/A5[2004] EWCA Crim 1885
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 7 July 2004
Strand
London, WC2
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE GAGE
HIS HONOUR JUDGE RICHARD BROWN DL
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NOS 13,17, 16, 15, 14 & 18 OF 2004
(SHARON ANN McKEOWN, ADAM VICTOR PARSONS, NIGEL CHRISTOPHER McKEOWN, JASON MICHAEL McKEOWN, PETER SINGH BARIA & LEON JONES)
Computer Aided Transcript of the Stenograph Notes of
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MR RICHARD HORWELL appeared on behalf of the ATTORNEY GENERAL
MR MICHAEL WOLKIND QC appeared on behalf of the OFFENDER SHARON McKEOWN
MR ANDREW SMITH appeared on behalf of the OFFENDER ADAM PARSONS
MR ANTHONY BARKER QC appeared on behalf of the OFFENDER NIGEL McKEOWN
MR JEREMY HAYES appeared on behalf of the OFFENDER JASON McKEOWN
MR ROGER THOMAS QC appeared on behalf of the OFFENDER PETER BARIA
MR JONAS HANKIN appeared on behalf of the OFFENDER JONES
J U D G M E N T

LORD JUSTICE HOOPER:

Her

[1]Majesty's Attorney General applies for leave to refer to this court the sentences passed on six offenders on 13 January 2004 by Her Honour Judge Fisher sitting in the Crown Court at Birmingham. The six offenders are: Sharon Ann McKeown, Adam Victor Parsons, Nigel Christopher McKeown, Jason Michael McKeown, Peter Singh Baria and Leon Jones. All six offenders either pleaded guilty or were found guilty of a conspiracy to supply heroin during the period 6 August 2002 to 21 November 2002. All had one or more previous convictions recorded against them, but those convictions were not such as to constitute aggravating features. There was no evidence of extravagant living by any of the offenders.[2]During the hearing we granted leave and announced that we had quashed all the sentences and substituted new and higher sentences.[3]Additionally there were two applications for leave to appeal sentence in respect of two co-defendants. Those applications were sensibly abandoned.[4]The facts as set out in the consolidated reference and approved by prosecuting counsel are as follows:
"(i) The West Midlands police mounted an operation to target the activities of drug dealers in the Northfield area of Birmingham. This particular conspiracy to supply heroin covered a period in excess of three months from August to November 2002. Although there was no evidence of large profits or high living, this was a significant and organised retail enterprise to distribute heroin in exchange for either cash or stolen goods. (ii) The evidence came primarily from police observations and video tapes compiled during parts of 39 days within the indictment period. Two customers to the conspiracy also gave evidence for the prosecution: James Harrison and Terence Coffey. (iii) The conspirators used two premises as their base. The first was 31 Radnor House. This was the home of Sharon McKeown and Peter Baria where they lived with their five children. The entrance to their home was heavily fortified by steel inserts inside the doorframe and a large steel gate outside the front door. Radnor House was a large block of council owned flats in which they were the sole occupants. All of the other tenants had left in anticipation of the block being demolished. (iv) On 4 September 2002 there was a hearing at Birmingham County Court to evict Sharon McKeown from Radnor House. Counsel for the housing authority suggested that drug dealing was being conducted at the flat. This was the first warning that the conspirators had been given that the authorities might be aware of what was happening. There had to be a change of premises. (v) The supply base was moved a short distance away to Flat 3, 22 Taysfield Road, the home of Nigel McKeown, Sharon McKeown's brother, and Christine Hutton, where they lived with their two children. (vi) Throughout, heroin was sold in £10 deals which weighed 0.15 gms. The purity was relatively high at about 50%. (vii) Purchasers contacted the conspirators by calling a dedicated mobile telephone which was always in the possession of one of the dealers. Telephonic contact was frequently made from a public telephone kiosk which was in view from each set of premises. Purchasers, therefore, were able to be scrutinised and, once approved, were then given instructions as to where to go to be supplied with heroin. The heroin was distributed at a number of different locations, for example, the entrance to Radnor House; in the road outside; in a nearby car park; outside an adjacent school; and in a local recreation ground. Some of the dealers were of a young age, namely Codington 14 and Pearson 15. Video evidence showed persons of a similar age to them appear to buy drugs from the conspirators. If payment was to be made by stolen goods they were taken to Radnor House and heroin was supplied from a cache on the landing outside the flat. On occasions specific goods were stolen to order and were traded at one-third of their retail value. (vii) In assessing the scale of the distribution there was the following evidence. A listening device was placed in the public telephone kiosk outside Radnor House and the billing details were obtained. During a 40 day period there were approximately 600 calls to the dedicated mobile telephone. Not all purchasers made contact through the public telephone kiosk, about half of the buyers used their own mobile telephones. Over the 39 days of police observations each observation lasted, on average, about four-and-a-half hours only. On the busiest day, a total of 28 separate incidents of apparent drug dealing were observed. Not all transactions could be seen from the observation post. As another example of the scale of this enterprise, on 25 October 2002, Terence Coffey, who gave evidence for the prosecution, stole 30 deals of heroin from outside Flat 3, 22 Taysfield Road. Notwithstanding this loss, dealing in heroin continued on that day and on the days immediately thereafter, such was the extent of the stock in trade. It is estimated that about 30 to 40 separate transactions were conducted by the conspirators on any given day."
[5]During the course of argument counsel for Peter Baria, Mr Thomas QC, made a few observations about these facts. As to paragraph (iii) he submitted that the heavy fortifiations had been installed for general security purposes and not to protect the trade in drugs. We shall proceed on that assumption. As to paragraph (vii) he objected to the words "outside a local school". He also questioned the proposition that "persons of a similar age" to Codington aged 14 and Pearson aged 15 had bought drugs. He later accepted that that may well have happened on a few occasions.[6]In passing sentence the learned

judge said this:

"One of the aggravating features of this particular case is that the adults involved caused juveniles and much younger people to participate in this conspiracy to supply Class A drugs. One only has to see the observation logs and the video to realise that drug dealing took place in the presence of young children, in some cases very young children. The drug dealing took place very often in public areas near, for example, to shops, outside a public house; near to a school and in the vicinity of a medical centre. Those of course are aggravating features."
[7]This passage confirms the accuracy of the reference, if one substitutes for the words "outside the school" the words "near the school". The passage in the sentencing remarks also makes it clear that the dealing took place in the presence of young children and in some cases very young children. Mr Thomas submits that there was no evidence of actually targeting young children to become purchasers of heroin. We shall assume that that is right.[8]The Attorney General relies upon the following aggravating features in all six cases: 1. The scale of the dealing in heroin was significant. 2. The conspiracy was well organised. 3. A large number of persons were involved in the distribution of heroin. 4. The young ages of some of the dealers and purchasers. Some of the dealers were of a young age, namely Codington 14 and Pearson 15. Video evidence showed persons of similar age to them appear to buy drugs from the conspirators. Drugs were sold close to schools and on a local recreation ground. 5. On occasions transactions were conducted relatively openly within the local community. 6. Children lived at Radmor House and at 22 Taysfield Road. 7. The receipt of stolen goods as payment for heroin promoted and encouraged further criminal activity. To that list of aggravating features with which we agree, we add the aggravating feature identified by the judge, namely the presence of young and in some cases very young children whilst supplies of heroin were being made.[9]It is submitted on behalf of the Attorney General that the sentences were unduly lenient. They failed to reflect properly the gravity of the offence, the aggravating features present, the need for deterrence and public concern about the supply of heroin and the obvious personal and social consequences which follow from the use of this dangerous drug.[10]We start with the references relating to the two offenders, Sharon McKeown, aged 35, and Peter Baria, aged 35. Both pleaded not guilty and were found guilty after a trial lasting some six weeks. Both were sentenced to five years' imprisonment. The learned judge found that Sharon McKeown and Peter Baria were at the forefront of the conspiracy. They lived together at 34 Radnor House with their five children. The reference sets out their involvement:[11]"Sharon Ann McKeown The judge sentenced this offender on the basis that she and her partner, Peter Baria, were at the forefront of the conspiracy and that the offender had very little concern or empathy for the effects of heroin on those whom she supplied. The offender and Peter Baria lived together at 31 Radnor House with their five children. On the evidence of Terence Coffey, the offender dealt with stolen goods when these were offered in exchange for heroin and such role continued after the base for this conspiracy had moved from Radmor House to Taysfield Road. She had a leading role within the conspiracy when it was based at Radmor House; she was responsible for the change in premises to Taysfield Road; thereafter, supplies of heroin continued to be held at Radmor House; dealers regularly visited Radmor House; the offender organised the appropriate response when one of the dealers within the conspiracy was arrested; and the main Street dealers within the conspiracy were her brothers Jason McKeown and Nigel McKeown. Peter Singh Baria As already indicated, the judge sentenced this offender on the basis that he and his partner, Sharon McKeown, were at the forefront of the conspiracy. The offender assisted Sharon McKeown in the exchange of drugs for stolen goods; on at least four occasions he was identified as being involved in the supply of drugs and was concerned in the storing of drugs at Radmor House for distribution therefrom."[12]Mr Wolkind QC for Sharon McKeown did not dissent from those comments. Mr Thomas argued that Peter Baria was not in the forefront of the conspiracy, particularly after the dealing moved to Taysfield Road. He relied on the comparative absence of video evidence showing his involvement thereafter.[13]In our view the judge, after a trial lasting some six weeks, was in the best position to decide on the relative culpability of the various defendants. We see no reason to disturb her finding, endorsed by the Attorney General that Baria, like Sharon McKeown, was in the forefront of the conspiracy. There was nothing to suggest that he had left the conspiracy after the actual dealing had moved to Taysfield Road.[14]It was agreed that there are apparently no cases directly comparable. Cases such as Djahit [1999] 2 Cr App R (S) 142 and Twisse [2001] 2 Cr App R (s) 37, dealing with low level dealing by an addict to support his habit (five to seven years' imprisonment after a trial) and Attorney-General's Reference No 84 of 2000 [2001] 2 Cr App R (S) 71, dealing with a few sales of Class A drugs to undercover officers (four to five years on a plea) demonstrate that a sentence of five years' imprisonment for this conspiracy for these two offenders is unduly lenient.[15]Davis and Chung (1999) 16 Cr App R (S) 16, and Attorney-General's Reference No 16 of 1991 (1992) 13 Cr App R (S) 653, give some help as to the normal upper limit for a conspiracy of this kind following a trial. In our judgment the present case had almost all the aggravating features of a retail supply of heroin, except, we shall assume, the targeting of children to buy heroin.[16]In the light of the aggravating features identified by the Attorney General and in particular the young ages of some of the dealers and purchasers, the involvement of children, the fact that transactions were conducted openly within the community in the presence of children and that stolen goods were received in exchange for heroin, a sentence which is at the top end for the retail and distribution of heroin is justified. We note in particular the impact that this kind of retail supply of heroin has on the community. It is difficult to imagine how unpleasant and dangerous it must be for law-abiding citizens to live on an estate of this kind where heroin is being sold so publicly and in recreation and open areas used by the community.[17]In our view the proper sentence for these two offenders following a trial was in the region of ten years, making it equivalent to the sentence which importations of some 500 gms of Class A drugs attract (see Aramah 4 Cr App R (S) 407, as subsequently amended). We quash the sentences of five years' imprisonment and substitute sentences of eight years, taking into account double jeopardy.[18]We turn to the other four offenders. Nigel McKeown is aged 23. He is an addict and he received a sentence of three years' imprisonment. Jason McKeown, his brother, is aged 36 and he received a sentence of three-and-a-half years' imprisonment. They both pleaded guilty on the first day of trial, having indicated their proposed pleas only the week before. Counsel for Jason McKeown sought to persuade us that they were entitled to more credit than a plea at such a late stage would normally attract because they had to see the many hours of video evidence before pleading. We find that an unattractive submission. In effect, the defendant is saying that he will not plead guilty until he is satisfied that the video evidence shows that he is guilty. That hardly reflects the kind of remorse which one is seeking to reward when giving a discount for plea.[19]Adam Parsons and Leon Jones both contested the case. Adam Parsons is aged 19 and received a sentence of three-and-a-half years' detention, and Leon Jones, aged 24, also received a sentence of three-and-a-half years, but in his case, imprisonment. Leon Jones was also an addict, but it is to his credit that it appears that he is no longer one.[20]Paragraph 6 of the reference sets out the involvement of these four. We set it out here:
"Nigel Christopher McKeown The judge sentenced this offender on the basis that his involvement was limited in time. He is the brother of Sharon McKeown and Jason McKeown and he lived at Flat 3, 22 Taysfield Road. His involvement began when the operation moved from Radmor House to his home address. Thereafter, however, the offender became a significant contributor. During nine days of police observations from late September to late October 2002 he was concerned in a large number of transactions or apparent transactions most of which occurred inside his home. On 29 October 2003 the offender was arrested in the street and was in possession of twelve deals of heroin, £80 in cash and the dedicated mobile telephone. In mitigation, this offender pleaded guilty, albeit at a late stage. He pleaded guilty on the day the trial was due to proceed but had indicated the change of plea in the previous week. Jason Michael McKeown The judge sentenced this offender on the basis that he had a substantial role in the conspiracy. He was the most prolific street dealer and was involved in the majority of the transactions. He was seen regularly on the police observation videos concerned in the operation of the conspiracy and was the usual holder of the dedicated mobile telephone. In almost all of the calls recorded by the listening device located in the public telephone kiosk, the prospective purchasers spoke to this offender. He was involved both at Radmor House and Taysfield Road. In mitigation, this offender pleaded guilty, albeit at a late stage. He pleaded guilty on the day the trial was due to proceed but had indicated the change of plea in the previous week. Adam Victor Parsons The judge sentenced this 19-year-old offender on the basis that he was less involved than some of the other conspirators. This offender's role, as shown by the police observation videos and from the evidence of purchasers, was to drive the 'duty dealer' around the locality when heroin was being supplied to customers in the street. On three particular occasions he supplied customers directly when they had gone to Radmor House and were waiting outside for the supply of heroin. The offender did not play any overt part in the conspiracy after the middle of October 2002. Leon Jones The Judge sentenced this offender on the basis that his involvement was limited in time. The offender had been in Radnor House on occasions when apparent drug dealing had taken place. On two occasions in August 2002, on 16th and 28th, the offender was concerned in the supply of drugs directly to purchasers in the area of Radnor House and 22 Taysfield Road."
[21]In so far as Nigel McKeown is concerned, Mr Barker QC on his behalf explained the circumstances in which he had become an addict. Mr Barker stressed the offender's more limited involvement and pointed out that the bulk of the calls were taken by another defendant. Nonetheless he was, as the reference describes him, "a significant contributor" and the scale of his involvement is demonstrated by the circumstances of arrest. Also -- and this is important -- he permitted his premises to be used for the substantial supply of heroin.[22]We take the view that after a trial he could have expected a sentence in the region of about eight years. In our judgment three years' imprisonment after a plea is unduly lenient. Taking into account his late plea and double jeopardy we quash that sentence and substitute a sentence of five years' imprisonment.[23]We turn to Jason McKeown. Mr Hayes on his behalf explained the circumstances in which he started dealing in heroin, namely to pay off a debt. He said that there was no evidence of targeting or introducing addicts. He compared Jason's involvement with that of the appellant Chung in the case of Davis and Chung. Chung was described as the manager of a "classic crack dealing house", selling, over 13 days, from the house half-a-gram of cocaine for £50, making some 160-200 supplies on a good day, and 30-40 on a bad day. He received a sentence of ten years' imprisonment following a plea, which was reduced to seven years', equivalent to some nine to ten years after a trial. Without in any way diminishing the seriousness of dealing from a crack house, such dealing does not have many of the aggravating features in this case. It is clear to us that Jason McKeown was the most prolific of the dealers in the conspiracy. Her Honour Judge Fisher distinguished between the two brothers, and so do we. After a trial he could have expected a sentence in excess of eight years' imprisonment. The sentence that was passed was unduly lenient. Taking into account his late plea and double jeopardy, we quash the sentence and substitute a sentence of five-and-a-half years' imprisonment.[24]As to Adam Victor Parsons, he is, as we have already said, aged 19. Mr Smith on his behalf stressed his age, his lesser role and the fact that a longer sentence would convert him into a long-term offender. We take the view that given his age and role the sentence should have been in the region of seven years. The sentence which was passed was unduly lenient and we substitute a sentence of five years' detention taking into account double jeopardy.[25]Finally we turn to Leon Jones. Mr Hankin referred us to paragraph 4.1 of the pre-sentence report. That reads:
"4.1. I feel that Mr Jones is a young man who is yet to fulfil his true potential and like many black young men, the educational system failed him and he left school early. He is, however, well motivated to study and acquire qualifications which will enable him to secure employment and live a law-abiding life. If sent to prison Mr Jones intends to avail himself of every opportunity open to him to acquire qualifications, he feels that custody will be harder upon his family than upon him, as the burden of child care will lie with his partner. Mr Jones was adamant that the court would be imposing a custodial sentence upon him, but if consideration is being given to a non-custodial sentence then a referral has been made to the Drug Treatment and Testing Order Team who requested a short adjournment to assess Mr Jones' suitability."
[26]There has clearly been an improvement in prison. He is the least involved. We take the view that after a trial he could have expected a sentence in the region of six years. The sentence that was passed was unduly lenient, and we substitute for it a sentence of four-and-a-half years taking into account double jeopardy.

Cited in 3 later judgments