Attorney General's Reference No. 115 and 116 OF 2004 [2004] EWCA Crim 3487

Case No 200405580/5581/A3

[2004] EWCA Crim 3487

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 9th December 2004

Strand

London, WC2

B E F O R E:

LORD JUSTICE JUDGE

(Deputy Chief Justice of England and Wales)

MRS JUSTICE DOBBS DBE

SIR MICHAEL WRIGHT

REFERENCE BY THE ATTORNEY GENERAL UNDER

S.36 CRIMINAL JUSTICE ACT 1988

ATTORNEY-GENERAL's REFERENCE NO 115 and 116 OF 2004

Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL

MISS S A RODHAM appeared on behalf of the OFFENDER

J U D G M E N T

Lord Justice Judge:

[1]This is a reference by HM Attorney General under section 36 of the Criminal Justice Act 1988 of sentences imposed on two offenders, Christopher Hiscock and Jeffrey Coombes, on 3rd September 2004. The case was heard at Woolwich Crown Court before His Honour Judge Carroll. The offenders pleaded guilty to possession of cannabis with intent to supply contrary to section 5(3) of the Misuse of Drugs Act 1971. Each was sentenced to two years' imprisonment.

[2]Christopher Hiscock is 42 years old, having been born in March 1962. Jeffrey Coombes is 33 years old, having been born in June 1972. Hiscock is a man of positive good character without any previous convictions or court appearances. Coombes was treated as a man of good character. Both men put positive references before the sentencing judge.

[3]The facts of this offence are very simple. The offender Hiscock was driving a Mercedes van. His co-offender Coombes was driving a VW Golf. The van contained 120 kilogrammes of cannabis in 240 packages. On the day in question, 19th July 2003, police officers from the National Crime Squad, together with officers from Customs and Excise, followed this convoy. They noted numerous telephone calls between the two offenders and between each of the offenders and a number ascribed in the memories of their telephones to someone known as "Big". They stopped the van and it contained this valuable quantity of cannabis. The street value was estimated at something over half a million pounds, £500,000 to £630,000. The bulk value was something between £240,000 and £360,000.

[4]The offenders were interviewed. They made no comment. They were charged with conspiracy to supply cannabis. They pleaded not guilty to that charge. They submitted defence case statements asserting that they were unaware of the contents of the van.

[5]The case was then listed for trial. This time a fresh indictment was prepared. This charged the offenders with possession of cannabis with intent to supply it. To that charge both offenders pleaded guilty. They put forward a basis of plea, which was accepted by the Crown and signed by all three counsel. The basis of plea reads:

"1. [The defendants] were asked to transport a van containing cannabis from the farm to another for a sum of money. [The sum of money was £400 each]. 2. They did not have contact with the drugs before the morning of 19th July 2003, nor did they have any role in its ongoing sale or other financial interest in it. The single delivery was the full extent of their involvement, financial or otherwise. 3. As a result they were unaware of the exact quantity or value of the drugs."

[6]We pause to reflect that it is odd that these two men were trusted with goods of so much value and that the owners were prepared to trust them by giving them so little for it. But, more important, we have to record our concern that this basis of plea was accepted at all. The quantity of drugs found in the van was very substantial and the offenders provided no information to tell anyone where the cannabis had come from, or its ultimate destination, or anything at all about it. It simply emerged out of the blue sky when they turned up and were asked to drive the transports.

[7]The offenders pleaded guilty. The judge gave them credit for that plea, treating the pleas that were tendered as pleas that have were offered at the first available opportunity. This was the first opportunity they had had to plead guilty to the count to which they did plead guilty. There was in fact ample evidence of conspiracy to supply.

[8]It is submitted on behalf of the Attorney General that these sentences are lenient, excessively so, and ones with which the Court should interfere. Our attention has been drawn to a number of authorities, including, as the starting point, Aramah, a very well-known authority, offering guidance from 1982. We have also been reminded of more recent cases of which the most recent is Lee Odey

[2001] 2 Cr App R(S) 85

at page 388. We mean no discourtesy to those who have supplied those authorities, but we have to be careful to remember that any sentencing decision, other than a guideline decision expressed to be so, is no more than an indication of the Court's view of the appropriate sentence in a particular case with a particular defendant in particular factual circumstances.

[9]This was a serious case of its kind. What the sentencing judge had to do, however, was to reflect on the agreed basis of plea. That meant that these offenders had handled very substantial quantities of cannabis, but that their involvement was very limited and that their financial profit from it was in context absolutely minuscule. We cannot avoid being troubled by this agreed basis of plea, and by the fact that the offenders did indeed seem to come out of nowhere into possession of this valuable haul of cannabis and without having any real idea of where it might be going.

[10]We do not know what counsel for the prosecution's instructions were, or the information which was available to him. It was not counsel who appears today on behalf of the Attorney General. What we have to say is said in measured terms, because it may be that we are offering criticism which is unjustified, but we have to assume that counsel was justified in reaching the agreement that he did. If we do assume that, we have to assume there must have been powerful evidence to support it. If not, it is a matter of complete surprise that it was accepted in terms that these men had no contact with the drugs before the morning of 19th July, had no other role, in effect, had no knowledge of anything except that they were asked to transport the van containing cannabis. On the face of it, this was not realistic.

[11]The Court has attempted recently, just before the summer vacation, in a case called Underwood on 31st July 2004, to ask counsel and judges examining written bases of pleas to examine the entire process with great care. Neither the judge nor prosecuting counsel would have had the benefit of that judgment on 19th July 2004. If they had, perhaps the basis of plea would not have been agreed.

[12]We have reflected on the judge's analysis based on the agreed basis of plea. He also had powerful personal mitigation available to each of the offenders and he rightly examined the nature of the potential impact of a prison sentence on each of them and their families. We also note that there are good reports for both offenders from the prisons at which their sentences are being served.

[13]In summary, by reference to sentencing standards in this class of case for the amount of cannabis involved in this particular offence, the sentences were undoubtedly lenient sentences. We have, therefore, had to reflect carefully on them. We have come to this conclusion. If we allow, as we would have to allow, for the double jeopardy principle bearing in mind the agreed basis of plea, it would not, in our judgment, be appropriate to increase the sentences. Accordingly, although we grant leave, the reference will be dismissed.