Abada, R. v [2006] EWCA Crim 1182

Case No 2006/00890/A5[2006] EWCA Crim 1182
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday 3 May 2006
Between
R E G I N ACrown
The Strand
London
WC2A 2LL
B e f o r e:
PRESIDENT OF THE QUEEN'S BENCH DIVISION
(Sir Igor Judge)
MR JUSTICE HENRIQUES
and
MR RECORDER FULFORD
_______________
ATTORNEY GENERAL'S REFERENCE No. 21 of 2006
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
- v -
Between
FAHD EL AZIZ ABADA__________________Computer Aided Transcription bySmith Bernal, 190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)__________________MISS B CHEEMA appeared for SOLICITOR GENERALMR L WATTS appeared for OFFENDER____________________J U D G M E N T
[1]This is an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1998 for leave to refer a sentence of three years' detention in a young offender institution imposed on 26 January 2006, in the Crown Court at Warwick, by His Honour Judge Coates, following the offender's plea of guilty to an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class A controlled drug contrary to section 170(2) of the Customs and Excise Management Act 1979. We grant leave.[2]The offender, Fahd El Aziz Abada, was born in December 1986. He is now 19 years old. At the date with which we are directly concerned he was 18 years old. The drug which he imported into this country was cocaine; it weighed 1.2 kilogrammes and was of 100 per cent purity.[3]The facts are that the offender, who was in debt (we shall come to the circumstances of his indebtedness), was recruited to act as a courier or "drugs mule". On 29 September 2005 he flew into Birmingham International Airport on a flight from Brazil. He was stopped and his baggage was searched. Among other things he was carrying a cardboard box of toys within which there was 1.24kg of cocaine at 100 per cent purity. The approximate street value was £151,000.[4]The offender pleaded guilty and expressed remorse. There was evidence to suggest that the remorse was genuine.[5]The facts of the importation can be traced to a flight reservation made by telephone on 5 September 2005 for a flight from Newcastle to Rio de Janeiro departing this country on 11 September 2005. The price was £788. On 6 September the offender went to the offices of the company responsible for the ticket. He paid for it in cash. He produced a British passport which identified him correctly. The flight was confirmed.[6]At about 4.40pm on 29 September he was intercepted at Birmingham International Airport. He told the Customs officer that he had travelled from Sao Paulo, where he had gone to meet up with friends. He said that he was an IT student who had been studying in Hammersmith. He handed over an E-ticket for KLM airlines showing travel from Brazil via Amsterdam to Birmingham. He said that, despite having a return journey booked for 10 October 2005, he would not be travelling back to Brazil. He said that he had intended to travel back a week earlier but had missed his flight, although his luggage had gone ahead of him, travelling to the United Kingdom on the flight that he had missed. He produced his outward flight ticket. He explained that he had flown out from Newcastle as it was the cheapest flight available. Following this convoluted story, not surprisingly, the investigating officer became suspicious.[7]The offender was then questioned about his backpack. He confirmed that he had packed the bag himself; nobody had given him anything to bring into the United Kingdom. The bag was searched. A few items of clothing were found together with four boxes wrapped in plastic which contained children's toys. A scan of one of the boxes produced a positive reading for cocaine. In due course a further examination revealed small packages wrapped in brown tape stuck down between two pieces of cardboard. One of the packages was field tested and there was a positive reaction to cocaine. The offender was arrested on suspicion of being involved in the importation of a controlled substance.[8]Scientific examination of the boxes revealed a total of 1.97 kilogrammes of powder containing cocaine which at 100 per cent purity was the equivalent of 1.24 kilogrammes.[9]The offender was interviewed under caution. He gave a long, detailed description of how he had become involved as a courier of cocaine. He told the investigators that a man known to him as Michael, with whom he used to play football on a weekly basis, had told him about an acquaintance of his who could arrange for the offender to be paid £5,000 if he would go on holiday and bring the package back into this country. When asked if he was interested, the offender confirmed that he was. Michael said that he would ask his contact to call the offender to make arrangements. The offender said that he owed friends and family up to £3,000, together with nearly £800 to the mobile telephone company.[10]In late August the offender was contacted by another man known as "BX". The offender met BX in a bar in Stratford and confirmed that he was interested in going abroad for him. BX said that he would be in touch. In his interview the offender admitted that he suspected that the arrangement involved the carrying of drugs, but he said that he did not ask any questions and he did not know or seek to discover what kind of drugs would be involved. Thereafter he met BX on a number of occasions during the following weeks to make the arrangements and preparations for his trip. He was then told that he would be travelling to Brazil. During the course of these meetings he was provided with smart and casual clothing to take with him to Brazil and a mobile telephone. He was then taken to Dial-A-Flight in Croydon and given £1,000 in cash to buy his aeroplane tickets. He was allowed to keep the change. When he was interviewed, he was shown a photocopy of an invoice for the journey and confirmed that this was the documentation with which he had been provided.[11]On 11 September 2005, he travelled with BX by train from King's Cross to Newcastle. He had with him a holdall containing his clothes. At Newcastle BX gave him £100 in sterling and a quantity of dollars. The offender took a taxi to the airport on his own. BX told him that he would be met by someone at the other end. He was told to go to an address in Rio. When he arrived in Rio, the offender telephoned BX. He was told to stay in the hotel. Two days or so later BX told him to travel to Sao Paulo, there to meet up with a man called Frank. The offender did this.[12]On 17 September, the day before he was due to fly home he was given some tights with drugs in them to wear under his trousers. He put on the tights and travelled back to Rio. He travelled to the airport on 18 September to catch his return flight. He checked in a suitcase which he had purchased in Sao Paulo. He was wearing the tights which contained the drugs. He became scared. He had a feeling that he would be caught. He telephoned BX and said that he did not feel able to go through with the plan that day. BX told him to return to the hotel.[13]A new flight was booked for 28 September. On this occasion he was given some boxes by Frank and another man to carry back with him. He was told that they contained toys and that "it" was in between the cardboard. The offender knew that "it" was a reference to drugs, and he strongly suspected it was cocaine. On this occasion he boarded the aeroplane. He expected to meet BX on his arrival. He was intercepted after he had collected his luggage and he was arrested.[14]It was accepted by the Crown (and the long narrative we have given serves to demonstrate it) that during the course of this interview the offender provided the police with all the details he knew about BX, about Michael, and about Frank, including mobile telephone numbers and physical descriptions. In practice it is unlikely that the information that he provided would be sufficient to track down any individual. There is no evidence that any of the material was of any particular value. Nevertheless, the offender appears to have done everything he could to assist the authorities. Either that reflects the offender's naivety, which Mr Watts suggested is a feature of this case, or he wanted to co-operate, having been caught.[15]Other than two minor irrelevant matters, the offender has no previous convictions.[16]In his submissions to us (and indeed in his submissions to Judge Coates) Mr Watts fashioned a powerful and moving submission that this was, and should be treated as, a very rare case indeed, in which there is a totality of mitigation that makes the sentence actually passed on the offender, if lenient, properly so, and one in which an appropriate degree of mercy was rightly exercised. We have been supplied with many positive testimonials. We have read a letter from the offender. Unlike many of those convicted of this kind of crime, his immediate focus is not himself. He writes:
"I have let down my parents and feel ashamed as they have brought me up to be a law-abiding citizen. I worry that I have caused them many sleepless nights and that the unnecessary stress may cause my mother's condition (multiple sclerosis) to deteriorate further."
The letter ends: 17. "I hope that you will take mercy on me and forgive me for my actions and I also hope my parents will forgive me for dragging them in such a situation."

The letter ends:

[17]The reference to his mother's illness is important. There is much detail about it in our papers. We do not propose to ventilate those details in public. Suffice it to say that some two years before this offence was committed, when the offender was still only 16 years old, his parents' marriage broke down and they separated. That meant much more than the customary depressing story of the effect on children in a close family unit of the destruction of that family. The offender's mother was, and remains, wheelchair bound. She suffers from multiple sclerosis. She needs continual care. The family includes a cousin who became a member of the household. She has psychological or psychiatric problems. In addition, there are two younger siblings. For the first eighteen months or so the offender maintained his attendance at college to try to keep up with his studies. But he became increasingly responsible for the running of the family household. Money was tight, resources were restricted, and he ran into debt. To try to maintain the home for his family, to support his mother and the younger members of the family, the offender did everything he could. He tried to find work, but in the end could not balance that against the need for him to be at home. The debt of about £3,000 was gradually incurred. It was this debt that he hoped to pay. At the time it seemed (and no doubt reasonably) to him to be a huge amount and he fell into the temptation to commit this offence. It was not a debt incurred by someone using drugs himself or to feed his own habit, nor indeed a debt incurred by someone in pursuit of his own selfish pleasures.[18]We acknowledge that this personal mitigation is important. There is true mitigation. The judge was told of, and was plainly impressed by, the response of the offender when he was discovered importing the drugs at Birmingham International Airport. He was as direct and straightforward in his response as he could be. He did what he could to help the authorities. The judge had that well in mind, and so do we. The offender's later plea of guilty at the first available opportunity was entirely consistent with his behaviour from the moment he was caught and he was entitled to full credit for it.[19]This was a very serious case involving a very serious crime, committed by a young man without any effective previous convictions and who had genuine mitigation to advance. The very experienced judge indicated that he had in mind the sentencing guideline cases. It is apparent from reading the transcript that there was a degree of confusion about precisely what the guideline indication as a starting point after a trial for this class of case should be. As we read it in the transcript of his eventual sentencing remarks, the judge took the view that this sort of trafficking would merit "a sentence of as much as ten years if there had been a trial, and if your importation had been as high as 5 kilogrammes at 100 per cent purity". Now is not the time to embark on an analysis of the guideline authorities on this subject, but it looks to us as though the judge had not fully addressed the range of sentences. In our view, given the amount of cocaine at the purity of 100 per cent that was brought into this country, the starting point should have been in the range of eleven to twelve years.[20]As we have said, for a young man suddenly faced with huge emotional burdens and heavy responsibilities, whose response to the discovery of his crime was positive and where the remorse was genuine, there was real mitigation. The judge addressed that mitigation point by point in his sentencing remarks. There is no doubt that he had every point well in mind. We have reminded ourselves of those points. We have also noted a positive report on the offender from the place where he is currently incarcerated.[21]The problem with this type of case is simply addressed. So very often the couriers have a tragic story to tell. They become involved because of some profoundly taxing personal problem: for example, a grandmother will import drugs in order to pay for an operation for a severely disabled grandchild. Sympathy mitigation based on these personal considerations is rightly deployed. But personal mitigation in this kind of case must be set in the context that offenders have committed an offence which carries so much potential for disaster.[22]The question is whether the sentence imposed by the judge was so merciful that in the end as a total sentence it cannot be allowed to stand. We have made every allowance that we can for the personal mitigation. We are nevertheless satisfied that for this young offender it was unduly lenient -- markedly so, and that we should interfere with it. If we did not, we should in effect be creating a significant inconsistency between the sentence to be imposed on him and the sentence imposed on others who have their own profound personal mitigation. We recognise the significance of double jeopardy in a case where the offender is a young man who has responded very positively to the sentence already imposed on him. But making every allowance for all these matters, and for Mr Watts' persuasive efforts to enable the sentence imposed by the judge to be sustained, we have come to the conclusion that we cannot do so. The sentence will be quashed. In its place there will be imposed a sentence of five years' detention to replace the sentence of three years' detention in a young offender institution.