Attorney General's Reference Nos 83 & 85 of 2004 [2005] EWCA Crim 1537

Case No 04/3691-3693/A8[2005] EWCA Crim 1537
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 9 June 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE HOOPER
MR JUSTICE CALVERT-SMITH
SIR CHARLES MANTELL
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NOS 83 & 85 OF 2004
(MATTHEW GARDNER & MOHAMMED AFZAL)
Computer Aided Transcript of the Stenograph Notes of
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MR RICHARD HORWELL appeared on behalf of the ATTORNEY GENERAL
MR DOMINIC BELL appeared on behalf of the OFFENDER GARDNER
MR JONATHAN DAVIES appeared on behalf of the OFFENDER AFZAL
J U D G M E N T

LORD JUSTICE HOOPER:

[1]Her Majesty's Attorney General seeks leave to make a reference to this court in respect of the sentences passed on Matthew Gardner, Nadim Butt and Mohammed Afzal. We have adjourned the application so far as Nadim Butt is concerned. At the adjourned hearing the reference made by the Attorney General will be considered, followed by an application by Butt for leave to appeal his conviction. We grant the Attorney General leave.[2]Matthew Gardner is 36 years of age. He was indicted on four counts of possessing a controlled drug of Class A with intent, contrary to section 5(3) of the Misuse of Drugs Act 1971. At the plea and directions hearing on 6th November 2003 Gardner pleaded not guilty. A trial was set down to commence on 19th April 2004. On the first day of the trial Gardner pleaded guilty to each of the four counts and sentence was adjourned for a pre-sentence report and for the completion of the trial of the two co-defendants.[3]Mr Bell, who appears for Gardner today, tells us that Gardner had, through Mr Bell, made it clear that it was his intention to plead guilty if the drugs charges against his partner, Katrina Wells were dropped. He tells us that counsel for the prosecution decided to drop those charges against Katrina Wells on the day of the trial and therefore Gardner pleaded guilty. Mr Bell sought to persuade us that Gardner was entitled to full credit for his plea. We will return to that later.[4]Nadim Butt is 36 years of age. He was indicted on one count, count 5, of supplying a controlled drug of Class A, cocaine, to another, contrary to section 4(3)(a) of the Misuse of Drugs Act 1971.[5]Mohammed Afzal, who was 21 years of age at the time, was indicted on one count, count 6, of being concerned in supplying a controlled drug of Class A, cocaine, to another, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.[6]Butt and Afzal pleaded not guilty to their respective counts, and each of them was convicted by a jury on 30th April 2004. Following that conviction, sentencing was adjourned for the purposes of the preparation of reports.[7]On 27th May 2004, at the Maidstone Crown Court, His Honour Judge Neligan sentenced the offenders as follows: Gardner, four years' imprisonment on each concurrent; Afzal, three years' imprisonment; and Butt, three years' imprisonment.[8]The sentencing remarks are extremely brief. The judge told the three defendants that there was a very real problem in the Medway towns with the supply of Class A drugs. In so far as Gardner is concerned, he gave him credit for his plea of guilty. However, the judge did not indicate how much credit he was giving. He said that the least sentence he could pass on Gardner was one of four years' imprisonment to run on each count concurrently. He said nothing further about the facts of the case.[9]It is accepted that Gardner was a commercial retailer in cocaine. He had been the subject of a surveillance operation and on four days in July 2003 was seen visiting a hedgerow hideaway in which he stored cocaine. The day after his last visit to the hideaway Gardner was visited by Butt and Afzal at his home. A supply of cocaine was made to Gardner. On the prosecution's case, Butt was the supplier of the cocaine and Afzal had been used to drive Butt to Gardner's home because Butt was at the time, for physical reasons, unable to drive. Gardner handed Butt £24,000 to reflect, on the prosecution's case, the transaction which had just taken place.[10]Gardner's home was searched. When police officers entered, cocaine was being washed away down a sink by Gardner's partner, Katrina Wells. She pleaded guilty to an offence of perverting the course of justice in relation to that action. 309 gms of cocaine at 100% purity remained from the consignment. Officers also found the paraphernalia of a drug dealer.[11]The detailed facts that form the Reference are as follows,(i) The Crown's case was that Gardner was a cocaine dealer operating from his home in Hoo, Kent.(ii) Police officers mounted a surveillance operation upon Gardner's home. On 8 July 2003 Gardner left his home and drove to a nearby country lane where he stopped for a few minutes and then drove away. Police officers went to where Gardner had stopped and found hidden in the hedgerow a plastic box which contained cocaine. A covert video camera was then positioned to record visits to that part of the hedgerow.(iii) Count 1: on 18 July 2003 police officers opened the plastic box, weighed the contents and took a small sample for analysis. It contained 46 gms of cocaine of unknown purity.(iv) Gardner visited the hedgerow hideaway on 19, 23 and 24 July 2003 and on two of those occasions he returned to his home immediately afterwards.(v) Count 2: on the night of 24/25 July 2003 police officers again examined the contents of the plastic box and found powder which they estimated to weigh about 4 ozs or 120 gms. Later, the contents were analysed and found to be 162 gms of powder of which 79.4 gms was cocaine at 100% purity.(vi) Counts 3 and 4: on 25 July 2003, at about 6.30 pm, Afzal drove Butt to Gardner's home. Butt entered the premises and carried something under his jacket. Just after 7 pm Butt left. He had nothing hidden under his jacket but carried a white carrier bag. Butt returned to the motor vehicle driven by Afzal and they left only to return a few minutes later for Butt to retrieve some cigarettes he had left behind. Gardner came out to meet Butt and the police officers then appeared intending to make arrests and to search the premises.(vii) Gardner and Butt were immediately arrested. Afzal drove a few hundred yards and then left the motor vehicle and threw into the undergrowth the white plastic bag that Butt had taken out of the offender's house. The bag contained £24,000 in 24 bundles of £1,000 each. Afzal was arrested.(viii) Police officers, however, were unable to effect an immediate entry into Gardner's home. Gardner's partner, Katrina Wells, remained inside the premises. She locked the front door and proceeded to attempt to dispose of the consignment of cocaine which Gardner had just bought from Butt. It took some five minutes for the police to enter the premises and in the kitchen they found the sink full of milky looking liquid which was draining away. Gardner's partner had sought to dispose of two slabs of cocaine by dissolving them in water. That which remained was placed into two bin liners which, when seized by the police, together weighed 600 gms of which 309 gms comprised cocaine at 100% purity. This was the remainder of the consignment which Butt had sold to Gardner: count 4. £24,000 represents a sale of about 1.3 kgs of cocaine at the then Kent wholesale price of £18,000 per kilo.(ix) The paraphernalia of the drug dealer was found in Gardner's home: four sets of electronic scales; small resealable polythene bags; a total of 15 gms of which 6.61 gms was 100% pure cocaine; count 3, which was found inside a box and nine resealable polythene bags; £2,580 in cash; and calculations showing lists of "out" and "in" in terms of thousands. The "out" total was over 35,000.(x) When interviewed, Gardner made no comment to the questions asked of him and submitted a prepared statement in which he claimed that his and his family's safety would be endangered if he answered any questions.(xi) When interviewed, Butt said that he had nothing to do with the cocaine found in Gardner's home. He said that he had a small amount of cocaine on his person but that was for his personal use only. He said that he had visited Gardner to discuss a consignment of counterfeit clothing and that the £24,000 comprised either his money or money from Gardner for clothes.(xii) When interviewed, Afzal said that he drove Butt because Butt had a bad neck and could not drive. Afzal said that he thought the meeting was about clothing and denied having anything to do with cocaine. He said that he drove away at the end because he thought Butt was being robbed.[12]We must say something further about sub-paragraph (viii). Mr Horwell, on behalf of the prosecution, submitted that, given the amount of money involved and given that some of the cocaine had undoubtedly been washed away, it had to follow that this transaction involved at least some 1 kg of cocaine, if not the 1.3 kgs mentioned in (viii). He submitted that the proper way, therefore, to approach this case was to conclude that for counts 4, 5 and 6 the amount of cocaine at 100% purity was some 500 gms.[13]Shortly before we retired to consider the matter, Mr Davies questioned that figure. He pointed out that in the course of mitigation on behalf of Butt to His Honour Judge Neligan counsel submitted that the judge should sentence Butt on the basis of 309 gms as opposed to any other figure; ie what had not been flushed away (calculated by reference to 100% purity). He said anything else would involve the court in an exercise in speculation. He went on to say:
"As I understand, the 309 gms is the weight by way of pure cocaine."
Whereas the judge, as can be seen from the transcript, did on another occasion or occasions interrupt counsel, he did not do so on this occasion. So, Mr Davies submits - and Mr Bell supports him in this submission - the proper way to approach this case is that it only 309 gms was involved in counts 4 to 6.[14]It is unfortunate that the trial judge did not in his sentencing remarks identify the amount as part of the process towards determining what was the proper sentence. In our view Mr Horwell's submissions are right. The only proper conclusion that the judge could have reached about the quantity at 100% purity would be a figure of about 500 gms (and even that may well have been in favour of the defendants). To allow the activities of Katrina Wells washing away the cocaine to affect the gravity of the case seems to us, as Mr Horwell submits, to be quite wrong.[15]We should add that Mr Davies said that it was not even clear whether the £24,000 referred to in (viii) related only to this transaction. That, in our view, is speculation. It seems to us that the judge was entitled to and should have concluded that the £24,000 represented a sale of about 1.3 kgs at the Kent wholesale price, which could fairly be reduced down to 1 kg and then to 500 gms to reflect 100% purity. We propose to approach this case on that basis.[16]In paragraph 13 Mr Horwell sets out the aggravating features:(i) The quantity of cocaine was significant.(ii) Gardner and Butt were commercial suppliers.(iii) Gardner has a relevant previous conviction. On 12 January 1995 he was sentenced to six months' imprisonment for three offences of possessing Class B drugs, amphetamine and cannabis, with intent to supply.(iv) Butt has a number of previous convictions of which one is particularly relevant. On 25 October 1994 in the High Court of Lille, France, Butt was sentenced to five years' imprisonment for importing a controlled drug. Butt had been arrested on 30 March 1994 on the Antwerp to Lille train when it stopped at Lille. Butt was in possession of 11,500 ecstasy tablets. Butt said that he had received the tablets from Rotterdam and was intending to take them to Calais. He claimed that he was seeking to repay a debt which had been incurred by a friend.(v) Afzal has a previous relevant conviction. On 17 October 2001, he was fined for possessing heroin. In 1997 he was cautioned for possessing cannabis.[17]In paragraph 14 Mr Horwell acknowledges the mitigating feature of the plea of guilty, albeit at a very late stage. He submitted that, contrary to the submission of Mr Bell, Gardner was not entitled to full credit for his plea. A defendant is entitled to full credit if he pleads unconditionally, not if he pleads on the basis that the prosecution will drop the case against another defendant.[18]Before looking at the authorities, we should refer to one other matter. It was suggested by Mr Bell that the level of sentences may have been determined as a result of the judge having confidential material about one of them. He submits that a judge, faced with a situation where one defendant is entitled to a reduction in sentence for reasons that cannot be made public, is entitled to reduce the sentences of the other defendants. He submits that to adopt any other course would put at risk the confidentiality of the particular mitigation.[19]Mr Horwell opposes that submission. We agree with Mr Horwell.[20]Mr Horwell relies on a number of well-known authorities. We propose to start with the case of Afzal. Mr Horwell draws our attention to Attorney-General's Reference No 146 of 2002 (Stewart) [2003] 2 Cr App R (S) 107. In that case the offender was found on a train with a package containing the equivalent of 363 gms of diamorphine. He pleaded guilty on the basis that he was acting as a courier of drugs to Glasgow and he further said that he believed that he was carrying cannabis not heroin. In paragraph 14 Kay LJ, giving the judgment of the court, said:
"We have started by asking ourselves what would have been the appropriate sentence if the offender had contested the matter and had known that he was couriering this quantity of heroin. Mr Altman on behalf of the Attorney General has suggested that the appropriate sentence in such circumstances would have been somewhere in the region of seven to seven-and-a-half years. We do not think in any way that estimate is excessive - it may to an extent be conservative."
The court then went on to deal with the allowance for the guilty plea and for the claimed lack of knowledge that what he was carrying was heroin.[21]It seems to us, in the light of that case (which fits comfortably with a number of other cases involving couriers), that Mohammed Afzal could have properly expected a sentence in the region of eight years. It is right to say that he was only 21 years of age at the time and, although he did have those two convictions, he did not have any convictions for the kind of offence for which he was convicted by the jury.[22]However, this court faces a considerable problem in so far as Mohammed Afzal is concerned. It is necessary to look at the history of the case. As we have said, the sentence was passed on 27th May 2004. The Attorney General, as he is required to do, submitted the appropriate notices within the 28 days. Thereafter there may have been some small slippage due to a request for further time by one or more of the offenders. Mr Horwell accepts, however, that those requests have not in any way affected the timetable of the case. For reasons of which we are unaware this case was not listed until 15th December 2004. That seems to us to be too long after the passing of the sentence, at least where a short sentence has been passed.[23]At the hearing in December Latham LJ said that the court was not happy about dealing with this case as a reference. He expressed concerns about the case and asked Mr Horwell to reconsider whether this was an appropriate case for a reference. That was done, and the Attorney General appears to have decided in early January that he intended to continue with the reference.[24]Unfortunately, and we are unable again to give any reasons for the delay, it was not until today, 9th June, that this reference has been listed for hearing. We are therefore being asked to increase Mr Afzal's sentence over a year after it was passed and some four to five months after his release from prison in January of this year. We have looked at Howarth v United Kingdom, which is conveniently reported in [2001] Crim LR 229, a decision of the European Court of Human Rights. In that case the delay had been in the region of two years and the court concluded that the proceedings had been too long for the purposes of Article 6. Mr Horwell submits that the proper way to approach a delay of the kind that we have in this case is not simply to dismiss the reference, but to take the delay into account when deciding what is now the appropriate sentence to pass.[25]We take the view, not without some hesitation, that given the delay and given his release from prison it would be wrong of us to now require him to go back to prison. We have no doubt at all, as is made clear by our earlier reasoning, that a sentence of three years' imprisonment was unduly lenient.[26]We turn to the case of Matthew Gardner. Cases such as Djahit [1999] 2 Cr App R (S) 142 and Twisse [2001] 2 Cr App R (S) 37 are concerned with low-level dealing by an addict to support his habit. They establish that a sentence of in the region of five to seven years' imprisonment after a trial is appropriate in the absence of various aggravating features. Mr Horwell referred us to Attorney-General's Reference No 84 of 2000 (Francis) [2001] 2 Cr App R (S) 71. That case is concerned with a few sales of Class A drugs to undercover officers and suggests a sentence of four to five years on a plea. That case must be read in the light of Afonso [2005] Crim LR 73, which deals with the case where the defendant is himself a drug addict. In this case we should say that none of the defendants were drug addicts.[27]In Attorney-General's Reference 13, 17, 16, 15, 14 and 18 of 2004 (McKeown & Others) [2004] EWCA Crim 1885, it was held that the proper sentence for a high-level retailer with a number of aggravating factors is in the region of ten years.[28]Mr Horwell also refers us to Aranguren (1994) 94 Cr App R (S) 347. He submits that by virtue of that decision someone importing 500 gms of Class A drugs at 100% purity can expect a sentence starting at ten years. The importing cases provide a useful way of checking the appropriate sentence for cases which do not involve importation.[29]Gardner was during the period in possession of some 636 gms at 100% purity. We have already decided that the right way to approach count 4 in his case is 500 gms.[30]Mr Bell submitted to us that he could properly be classed as a low-level retailer of the kind being referred to in Djahit and Twisse. We do not accept that submission. Someone who receives the quantity that he received on 25th July and pays £24,000 for it cannot be described as a low-level retailer.[31]We take the view that the proper sentence would have been one in the region of ten years, reduced by about one year for plea. We have to take into account double jeopardy and the history of this case which we have outlined when considering the case of Mohammed Afzal. We take the view that the sentence that this court should now pass is one of six years' imprisonment on each count concurrent. The sentence passed by His Honour Judge Neligan of four years' imprisonment was certainly unduly lenient.[32]Finally, we shall ask the Registrar to prepare a report for us setting out the cause of the delays in this case.