Thomas, R v [2004] EWCA Crim 3092

Case No 200405261/A6[2004] EWCA Crim 3092
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 8th November 2004
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
MRS JUSTICE HALLETT DBE
MRS JUSTICE DOBBS
Between
R E G I N ACrown-v-
Between
STEPHEN FRANCIS THOMAS
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S GOODMAN appeared for APPELLANT
J U D G M E N T
[1]MRS JUSTICE DOBBS: On 21st July 2004 in the Crown Court at Bristol, the appellant was convicted. He was sentenced on 19th August 2004, for possession of a Class A drug with intent to supply, for which he received 2 years' imprisonment. He appeals against sentence by leave of the Single Judge.[2]The facts of the case are as follows. On Friday 27th June 2003 the appellant went to the Glastonbury Festival in Pilton, Somerset. A security guard at the entrance spotted the appellant apparently placing something in his pocket. The appellant did not consent to being searched but agreed to be taken to a nearby police station. When searched the appellant was found to have 73 individual self-sealing bags which contained magic mushrooms in a dried condition. Most of the boys had been kept in a bum bag around the appellant's waist. After the drugs were found the appellant made an attempt to escape but was apprehended after getting a few yards. On recapture he said:
"OK I'm nicked. The mushrooms are in my bag, about 73 of them. I ain't a criminal."
After his arrest the appellant replied:
"It used to be alright at Glastonbury, drugs used to be ok."
He was dressed in a comic wig and bandanna. He said of the wig:
"That was my cunning disguise, it didn't work did it?"
He later added an unsolicited remark relating to the mushrooms, saying:
"They were going go for to £10 a bag."
[3]There was found to be approximately 140 grams of dried mushrooms in the bags. The mushroom contained psilocybin an ester of psilocin which is a Class A drug. According to the defendant there were about 70 to 80 mushrooms in each bag and he had total of about 5,000 mushrooms.[4]When interviewed the appellant said he had picked the mushroom himself in Wales in 2002. He dried them out on grease proof paper and put them into bags and then he hid them in a shed. He accepted that he knew that magic mushrooms were a Class A drug. It may be the case that he had been advised of this by his solicitor prior to interview. He accepted the circumstances of his arrest and the comments made, save that he observed that £10 a bag is what magic mushrooms sell for. He said he would personally consume a couple of hundred mushrooms at a time, in other words a couple of bags, his body having got used to them.[5]As regards his future intentions in relation to the mushrooms and what he was going to do, he said he was going to go to a green field site, going to make a volcano shaped structure and sit around gazing at it. He said the mushrooms were in self-sealing bags to make them balance better and prevent them blowing away. He insisted that the mushrooms were for personal use.[6]At trial, however, the appellant did not stand by his volcano sculpture account. He simply said that the mushrooms had been for personal use to induce a creative state of mind for the purpose of painting and sculpting.[7]It was also argued on the appellant's behalf, at trial, that the mushrooms, having been picked and naturally dried, were not a preparation within the meaning of Part 1, Schedule II to the Misuse of Drugs Act 1971 and therefore not a controlled drug. The jury clearly rejected both defences.[8]This appellant was born on 26th March 1961. He is now 43 years of age. He was of previous good character. There were two reports before the court. A psychiatric report, dated 31st March 2004, referred to a 10 year history of psychiatric problems, depression and treatment with antidepressant medication. It was said that he found life difficult to deal with and only survived with the assistance of various props including hallucinogens.[9]A pre-sentence report was also before the court, dated 6th August 2004, which found no indication that the appellant habitually abused drugs other than occasional cannabis use. This was his first conviction. There was a low risk of reoffending. There were concerns about his vulnerability in the light of his history of depression and difficulties coping. The report also indicated that he would have given some mushrooms to friends and sold some to cover the cost of his ticket to the festival; that ticket costing £100.[10]Two references referred to the appellant's involvement in a city farm and his struggle to make a living from his art work. Despite struggling financially over many years he had never broken the law. He was though to be trustworthy, kind and amiable.[11]In sentencing, the learned Recorder observed that the mitigation put forward by counsel had lost almost all of its force by reason of the fact that he chose to contest the matter, not just the technical defence which one could have understood but also the fact that he had no intention to supply. It was found that he knew he was going to sell drugs and took steps to avoid detection.[12]The court was not helped by way of decided cases as to how sentence should be approached in relation to this particular Class A drug. If he had the same number of wraps of heroin or cocaine the sentence, after trial, would have been 4 to 6 years. The court was in no position to determine the public's attitude to this particular Class A drug but the Recorder had to ask himself to what extent he should mitigate the penalty normally applicable to Class A drugs.[13]Account was taken of the appellant's long-standing difficulties with depression. How much that was contributed to by his use of magic mushrooms was not known and no view was taken. Account was also taken of his previous good character and testimonials. The least sentence that could be imposed was one of 2 years' imprisonment.[14]Mr Goodman, who did not appear in the court below, submits that, in all the circumstances of the case, the sentence was manifestly excessive. The first submission made is that the offence did not pass the custody threshold. Alternatively, the judge erred in principle by equating magic mushrooms with other class A drugs in terms of their seriousness for sentencing. Thirdly, it was said that insufficient regard was had to the unusual legal status of magic mushroom in determining his true criminal culpability. Finally, it was submitted that insufficient credit was given for his previous good character, personal circumstances and mental health difficulties.[15]Cases of this kind rarely come before the courts and, when they do, they have been in relation to simple possession, the issue at point usually being whether they fall within the definition of a preparation to render them illegal under the Misuse of Drugs Act 1971. At present, somewhat out of line with other western countries, apart from Holland, in this country, the possession of fresh mushrooms is not illegal under the Misuse of Drugs Act 1971 unless the fungal material has been deliberately dried or prepared by the hand of man. (See the case of R v Stevens (Court of Appeal (Criminal Division), unreported 15th April 1981). By his very own admission the appellant acknowledged that he had picked and dried the mushrooms himself.[16]Information about magic mushrooms indicates that they have a powerful halluconogenic effect similar to that of LSD although the 'trip' is often milder and shorter. They alter the way the mind perceives things. Depending on the amount of mushrooms taken they can be lethal. Like LSD once a 'trip' has started it cannot be controlled or stopped and a bad trip can be unpredictable. Even at low doses, a threshold dose being about 2 milligrams of the dried substance, hallucinatory effects can occur. The effect of the drugs as described by the defendant in interview was to make him 'high'. He indicated to the psychiatrist that they put him somewhere else and that he enjoined the distorted reality which accompanies intoxication from the mushrooms. Whilst it is advanced in front of us that this Class A drug can be distinguished in many ways, namely the lack of prevalence, the lack of statistics showing that(a) it is addictive and(b) that deaths have resulted from the use of the drugs, nevertheless, Parliament has seen fit to classify this substance as a Class A drug. We remind ourselves that it was said in R v Martinez (1984) 6 Cr App R(S) 364, that no distinction should be drawn by the courts between different Class A drugs.[17]We look therefore at the quantity of the drug in the appellant's possession rather than putting too much emphasis on what the market value may be. We note what was said by the appellant about giving some drugs to friends and selling some to pay for his ticket. This may be equated with small scale retail selling. We further remind ourselves what was said in the case of R v Bennett (1981) 3 Cr App R(S) 68, by Lord Lane, the then Lord Chief Justice, when he said in relation to a case involving the supply of LSD to friends:
"In our view, however, sentences for this type of offence must be severe because, as the learned judge said, no one knows where it will end when someone first starts taking drugs. Anybody who supplies in order to facilitate the taking of drugs is guilty of a very serious offence."
In the case of R v Virgin (1983) 5 Cr App R(S) 148, the dangers of LSD were reiterated and it was emphasised that anyone convicted of supplying must anticipate a substantial prison sentence. It follows from this that we reject the submissions advanced that that sentence was wrong in principle, and that the drug should be treated differently from other Class A drugs. We note what Mr Mounder said, who was trial counsel, in his advice at paragraph 14, that if this drug was to be treated as a Class A drug, generally, then the sentence was undoubtedly lenient.[18]In our view, the sentence passed in this case by the learned Recorder was a proper one, reflecting, as it clearly did, what mitigation existed in the case. This appeal against sentence is therefore dismissed.