Attorney General's Reference No 152 of 2004 [2005] EWCA Crim 456

Case No 04/7184/A9[2005] EWCA Crim 456
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 22 February 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE LATHAM
MRS JUSTICE GLOSTER
HIS HONOUR JUDGE TILLING
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 152 OF 2004
(PETER PACKER)
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MR H DAVIES appeared on behalf of the ATTORNEY GENERAL
MR J LLOYD-JONES appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE LATHAM:

[1]On 20th October 2004 this offender pleaded guilty to possession of a controlled drug of Class A with intent to supply and supplying an unknown quantity of cocaine. That was at the Northampton Magistrates' Court. He was committed to the Crown Court for sentence. On 19th November 2004 he appeared before Mr Recorder Kelly, who, having considered the facts and a pre-sentence report, deferred sentence until 25th February 2005 pursuant to his powers under section 1 of the Powers of Criminal Courts (Sentencing) Act 2000. It is against that order that the Attorney General seeks leave to refer the matter on the basis that the order was too lenient in the circumstances of this case.[2]Turning to the offender, he is a young man of 28 years of age who is effectively of good character, in the sense that whilst he has one offence of a similar nature, namely possessing two ecstasy tablets, that seems to us and seemed to the Recorder to be an offence which could not and should not be taken into account in relation to the determination of the appropriate sentence in this case.[3]The facts were that, as a result of a search warrant, the offender's house was searched on 2nd August 2004 and found in an outhouse was a plastic bag containing 249 gms of cocaine at 22% purity and from a holdall under his bed a plastic bag containing 4.15 gms of cocaine at 18% purity. He was arrested and interviewed. At first he accepted that he was aware of the bag under his bed but asserted that he knew nothing about the quantity found in the outhouse. However, subsequently on 2nd September, at his request, he was reinterviewed and he then accepted that he knew about the larger quantity in the outhouse; he said that he was acting as a warehouseman for a local drug dealer, whom he declined to name. He said that his payment was in cocaine and that he had in fact acted as warehouseman for an earlier consignment. The arrangement to act as a warehouseman had been over a period of about two months. It was clear from the account that he gave that he was and had been for a number of years heavily addicted in particular to cocaine. He asserted in that interview that he was determined now to rid himself of the habit.[4]When the matter came before the Recorder the offender provided a written basis of plea which was acceptable to the Crown. It reads:
"The defendant pleads guilty to possession with intent to supply in that on the day of his arrest, namely Monday 2nd August 2004, he had been storing a quantity of cocaine in his shed for another. He was therefore acting as custodian. It is now understood that the drugs weighed 253.7 gms. The defendant's payment for storing drugs on behalf of another was being supplied by that person was cocaine to fund his then serious cocaine habit. No other benefit was realised by the defendant. The defendant stands by his interview with the police on 24th September. He accepts that for two months prior to his arrest he had again acted as custodian of cocaine which had been left in his shed to be collected on a subsequent occasion."
[5]The Recorder had before him, as we have already indicated, a pre-sentence report. That confirmed the account that the offender had given of his addiction over a substantial number of years. It accepted that the offender was clearly intent, if he could, on ridding himself of his habit and concluded that, if that was indeed his intention, then there was only a low risk of harm to the public and indeed would in fact obviate the risk of further similar offending. However, the writer of the report appreciated that the likely consequence of the conviction was a custodial sentence.[6]After hearing mitigation the Recorder retired and clearly gave careful thought to what should be the appropriate disposal. He concluded that, despite the fact that this was an offence involving supply of a Class A drug, he was prepared to allow the offender an opportunity to demonstrate whether or not his intention to keep free from drugs was one which he could put into effect and accordingly deferred sentence as we have said. In doing so he clearly gave weight to the offender's early guilty pleas and frankness to the police, his age and effective previous good character and the fact that he was a warehouseman rather than playing any more active role in the supply chain, but above all he clearly gave weight to the offender's stated intention to overcome his addiction.[7]The Attorney General, through Mr Davies on his behalf, submits that, despite that mitigation, the order was unduly lenient. It is submitted on the Attorney General's behalf that in cases such as this a custodial sentence is almost always inevitable.[8]We have been referred to the cases of Djahit [1999] 2 Cr App R (S) 192 and the Attorney-General's Reference No 80 of 2003, which is 17th February 2004, CA 2003/6465. In the latter case this court indicated that, in a similar case of warehousing, of indeed a smaller quantity of cocaine, the appropriate sentence after a plea will be one of five years' imprisonment.[9]Having considered the submissions of counsel and the authorities to which we have been referred, we would wish to underline and reiterate the fact that warehousing is an involvement in the supply chain of drugs which almost inevitably carries with it a sentence of immediate imprisonment. A person such as the offender in this case is carrying out an important function in the distribution of the drugs in question and that is the justification for the court's approach. Personal mitigation in relation to the offender's background is unlikely of itself to be of great significance because, like couriers in importation cases, it is often the good character of the warehouseman which is of importance to those in the supply chain in order to avoid detection.[10]Having said that, however, it is always necessary to look with care at the particular circumstances of the case in question to determine the appropriate level of sentencing. In the present case the offender is entitled to the maximum discount for his plea of guilty: it was a plea before the magistrates' court, and that, coupled with the circumstances in which he came to give the admissions which founded the charges, makes it plain that he was not only frank but clearly intending to make a full and clean breast of the matters with which he was faced, which gave strength to his assertion that he was now wishing to rid himself of his addiction.[11]The second matter is that, in the present case, the offender has made it clear that he was - and this has been accepted by the prosecution - being paid for his involvement with cocaine to which he was addicted. It follows that he falls into the category of offender for whom the court can consider a reduced sentence for that reason. That of course will not apply where there is any indication that there is more by way of profit than the mere provision of a personal supply of the drug in question.[12]Bearing in mind those matters, it seems to us that, on the facts of this case, the court at first instance would have been justified in reducing the custodial sentence that was inevitable to one of three to four years' imprisonment. In the present case, dealing, as we are, with a reference where the appellant has had an indication which has suggested to him that the court is not going to impose a custodial sentence, the element of double jeopardy is of greater significance and accordingly can be prayed in aid to mitigate the effects of the inevitable custodial sentence to a significant extent.[13]However, we do not consider that we can avoid imposing a custodial sentence. We bear in mind all the matters which have been urged on us, in particular the fact that we understand he has now been shown to be drug free on three occasions in the last few weeks, although it should be said that the supplementary report that we have from the Probation Service was not as positive as I suspect the Recorder would have hoped. It would appear that the offender had not perhaps faced up to the reality of his position. Nonetheless we consider that we can reduce the sentence to one of two years' imprisonment; but that is the minimum which is appropriate in all the circumstances.[14]We therefore give leave to the Attorney General to refer the sentence as being unduly lenient and substitute a sentence of two years' imprisonment for the deferred sentence which was the order of the court below.[15]The question then arises as to when and where the offender should report in order to be taken into custody. Mr Lloyd-Jones, have you any preferred solution to that?[16]MR LLOYD-JONES: My Lord, would you just excuse me the briefest moment? My Lord, Mr Packer will do that that the court asks of him.

LORD JUSTICE LATHAM: The usual order is for him to report to an appropriate local police station within 24 hours.

[18]MR LLOYD-JONES: My Lord, if that might be Northampton Police Station? It is known as Campbell Square.

LORD JUSTICE LATHAM: Have you any submissions, Mr Davies?

[20]MR DAVIES: No, my Lord, thank you. (The Bench conferred.)

LORD JUSTICE LATHAM: What we propose to order is that the offender should make himself available at the Northampton Police Station that has been identified by 12 o'clock tomorrow and that will enable him to put his affairs in order.