Attorney General's Reference No. 42 OF 2005 [2005] EWCA Crim 1722

Case No 200502106/D2[2005] EWCA Crim 1722
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 16th June 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE PILL
MR JUSTICE HENRIQUES
MR JUSTICE DAVIS
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 42 OF 2005
Computer Aided Transcript of the Stenograph Notes of
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MR J NORRIS appeared on behalf of the ATTORNEY GENERAL
MISS B CHEEMA appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE PILL:

[1]This is an application by the Attorney-General, under section 36 of the Criminal Justice Act 1988. He submits that a sentence passed at the Reading Crown Court by Miss Recorder Bucknall QC, was unduly lenient within the meaning of the section.[2]In November 2004 the offender stood trial on an indictment containing four counts of possession with intent to supply Class A drugs, namely heroin, cocaine and ecstasy. There were alternative counts of simple possession. On 22nd November 2004 the offender was convicted, following a trial before the learned Recorder and a jury of count 2, simple possession of 63.6 grams of heroin; counts 3, possession with intent to supply 9.65 grams of heroin. Count 5, possession with intent to supply 4.23 grams of cocaine and count 7, possession with intent to supply 24.5 ecstasy tablets.[3]Sentence was adjourned for pre-sentence reports to be prepared. On 18th March 2005 the Recorder sentenced the offender to a Drug Treatment and Testing Order for 12 months on each count concurrently.[4]David Cameron, the offender, is 25 years old. It was on 17th January 2003 that his home and car were searched by police executing a drugs warrant. They found heroin, cocaine and ecstasy, together with scales and other paraphernalia.[5]It was during the search of the car that a sock containing 63.6 grams of heroin was found. In the house were found 24 prepared wraps of heroin containing the 9.65 grams, together with a single foil wrap of cocaine, and the 24.5 tablets of ecstasy.[6]The police found a box containing £6,420 in cash, in a wardrobe and a further £630 in cash in a bedside drawer. A set of electronic scales was found.[7]Scientific analysis revealed the offender's fingerprints on the foil wrap of cocaine. He denied all knowledge of the drugs on interview. He said that the money belonged to his wife and had been given to her. The offender named another man, who was alleged to be involved in the ownership of the drugs. That man was traced and interviewed and denied all knowledge of the drugs. The offender's mother denied that she had given money to the family as the offender had alleged.[8]After conviction, the offender disclosed a serious drug addiction. The usual investigations, preparatory to a confiscation order, were made and a substantial sum of benefit was identified.[9]While the offender had one previous conviction, he was treated, and rightly treated by the learned Recorder, as of previous good character.[10]The author of the pre-sentence report concluded that there was a risk of reoffending if the offender did not tackle his drug addiction. A DTTO assessment report was prepared after several meeting with the offender in January 2005. Long-term drug abuse was admitted and a considerable daily sum of expenditure on heroin.[11]The report detected a clear motivation to embark upon drug rehabilitation and recommended a structured 12 month DTTO with twice weekly drug testing.[12]When sentencing the offender, the Recorder stated that the offender had been convicted of serious drug offences. She stated that:
"...the most important thing, from the point of view of both the public and your own rehabilitation, is that your dependency be addressed."

The Recorder added:

"...I have reached the conclusion that your offence is certainly seriousness enough to merit a community order and that the most appropriate method of dealing with you is to impose a drug rehabilitation requirement."
It was in those circumstance that the 12 month DTTO was made.[13]On behalf of the offender, Mr Norris submits that the Recorder was justified in making the order she did for the reasons she did. He further relies upon the fact that the offender has made an excellent start to the programme of treatment for which the order provided.[14]If the Court is against him on the custodial sentence, he submits that a discount should be made from what would otherwise be an appropriate sentence by reason of the double jeopardy in which the events have placed the offender and the shock to him and his family the substitution of a custodial sentence will involved.[15]For the Attorney-General, Miss Cheema has referred us to well-known authorities in this field. She has referred to the case of R v Twisse [2001] 2 Cr App R(S) 9, a decision of this Court, Kennedy LJ presiding. Having considered authorities and heard evidence, Kennedy LJ stated, at paragraph 10:
"All indicate a sentencing bracket of between 5 and 7 years. In other words, as the judge said, an offender may expect about 6 years' imprisonment, which can be increased or mitigated in the way that he outlined."
The Court, "having anxiously considered" whether it was necessary to review the tariff, stated that it was not necessary to take that step.[16]More recently, in the case of R v Afonso [2004] EWCA Crim 2342, this Court, Rose LJ, the Vice-President, presiding, stated at paragraph 2:
"Nothing which we say is intended to affect the level of sentence indicated by Dhajit and Twisse for offenders, whether or not themselves addicts, who, for largely commercial motives, stock and repeatedly supply to drug users small quantities of Class A drugs; and, as was pointed out in those authorities, as well as other authorities, the scale and nature of the dealing are important when deciding the level of sentence."
The Court went on in that case to consider a type of offender which, as Mr Norris realistically and inevitably accepts, is quite different from the offender in this case.[17]More recently, in Attorney-General's Reference No 66 of 2003 [2003] EWCA Crim 3514, this Court, the Vice-President again presiding, considered circumstances in which a DTTO might properly be made. We need refer only to three of the circumstances considered by the Court at paragraph 14 of the judgment:
"(vi) the type of offence for which a DTTO will generally be appropriate is an acquisitive offence carried out to obtain money for drugs, though the fact that the motive was to feed drug addiction does not compel the conclusion that a DTTO should be made; (vii) a DTTO may be appropriate even when a substantial number of offences have been committed; (viii) a DTTO is unlikely to be appropriate for a substantial number of serious offences which either involve minor violence, or have a particularly damaging effect on the victim or victims. There must be a degree of proportionality between offence and sentence, so that excessive weight is not given to the prospect of rehabilitation at the expense of proper regard for the criminality of the offender."
[18]Making her submissions on behalf of the Attorney-General, Miss Cheema submits that a sentence of a DTTO failed adequately to reflect the gravity of the offences, which demonstrated that the offender was a commercial street level drug dealer. In particular, the sentence failed to have regard to the menace of Class A drugs in society and the need to pass deterrent sentences in cases of the supply of Class A drugs.[19]We have referred to the submissions of Mr Norris. He accepts that this is a case which comes within the bracket indicated in the cases to which we have referred, if a custodial sentence is to be imposed. The sentence may be in the region of 6 years, subject to the double jeopardy point which counsel has raised.[20]We accept the submissions of Miss Cheema. This was not a case, applying the guidelines and having regard to the issues involved, where a DTTO could properly be made. A custodial sentence was required. Accordingly, we allow the Attorney-General's application and go on to consider sentence.[21]The proper sentence, had sentence been imposed in the Crown Court, would have been one of about 6 years. We have regard to the submissions made by Mr Norris and to the double jeopardy in which the offender has been placed. The sentence of the Court is one of four-and-a-half years' imprisonment.

LORD JUSTICE PILL: Can you assist, Miss Cheema, there must be a distinction between the offences, must there not?

[23]MISS CHEEMA: Yes.

LORD JUSTICE PILL: The DTTO, as I understand it, was made on each count.

[25]MISS CHEEMA: Made concurrently in respect of each guilty verdict. (The Bench Conferred)

LORD JUSTICE PILL: We have indicated the total sentence. That will consist of concurrent sentences of four-and-a-half years on all the offences involving possession with intent to supply and a concurrent sentence of 2 years for the possession of the Class A drug.

[27]Are there further applications?[28]MISS CHEEMA: Would my Lord direct that the offender surrender to Reading police station by an appropriate time, say tomorrow, and then the sentence can take effect.[29]MR NORRIS: I have no argument.

LORD JUSTICE PILL: So be it. Administratively noon would be far better.

[31]MISS CHEEMA: Thank you.