Attorney General's Reference No. 111 of 2005 [2006] EWCA Crim 128

Case No 2005/05864/A2

[2006] EWCA Crim 128

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 17 January 2006

The Strand

London WC2

B e f o r e:

LORD JUSTICE LATHAM

MR JUSTICE BURTON

THE RECORDER OF LONDON

(Sitting as a Judge of the Court of Appeal Criminal Division)

ATTORNEY GENERAL'S REFERENCE No. 111 of 2005

UNDER SECTION 36 OF

THE CRIMINAL JUSTICE ACT 1988

Between

R E G I N ACrown

- v -

Between

ROBERT WILLIAM FARROW

Computer Aided Transcription by

Smith Bernal, 190 Fleet Street, London EC4A

Telephone No: 020-7421 4040

(Official Shorthand Writers to the Court)

MR D PENNY appeared for ATTORNEY GENERAL

MR S V EVANS appeared for OFFENDER

J U D G M E N T

Tuesday, 17 January 2006

[1]This is an application by the Attorney General for leave to refer to this court a sentence of three years' imprisonment imposed upon the offender on 13 October 2005 at the Bolton Crown Court in relation to five counts of possession of drugs with intent to supply. We grant leave.

[2]The position was that the offender had been charged with three counts of possession of a Class A drug with intent to supply, one count of possession of a Class B drug with intent to supply, and one count of possession of a Class C drug with intent to supply. He had pleaded guilty to two of the counts relating to the Class A drug (heroin) at a relatively early stage, but had pleaded not guilty then to the remaining counts which he was only prepared to admit on 4 October 2005 when the matter was listed for trial. In addition to the sentence of three years' imprisonment, he was also ordered to serve eighteen months of the unexpired portion of his licence period from a sentence that had been previously imposed. The Recorder would have been entitled to have ordered a substantially greater period to have been served, but determined merely to activate the eighteen months. That part of the sentence does not form any part of the reference, but is a matter to be taken into account when considering the totality of the sentence which the Recorder ordered in the first instance and the sentence which we consider appropriate today.

[3]The facts of the case were that on 1 May 2005, police officers went to a disused warehouse in Bury. The offender was within the perimeters of the premises. He was searched, found to be in possession of three mobile telephones, a small set of digital weighing scales upon which traces of heroin were subsequently found, and £130 in cash. His car parked in a nearby lane was searched. In the glove compartment were a number of packages of powder containing the equivalent of 36 grammes of heroin at 100% purity with a potential street value of £10,000. These were the subject matter of the second count in the indictment.

[4]He was arrested and taken to the police station. He was found to have further packages of heroin hidden in his underwear. These represented a further 10 grammes of pure heroin with a potential street value of £2,000, and those were the subject matter of the first counts in the indictment.

[5]The police then returned to the site at which the offender was arrested. In a number of outbuildings they found further packages of drugs. Firstly, there were a number of packages of powder which contained the equivalent of 550 grammes of pure heroin with a potential street value of £120,000 (the subject of count 3 in the indictment), 910 grammes of amphetamine with a potential street value of £10,000 (count 4 in the indictment), and 1 kilo of cannabis resin with a potential street value of £5,000 (the subject matter of count 5 in the indictment). The result was that as far as Class A drugs were concerned, the offender fell to be dealt with on the basis of possession of almost 600 grammes of heroin at 100 per cent purity. The police also recovered from the site plastic bags and a substantial quantity of paracetamol powder which is regularly used as a cutting agent with heroin.

[6]When interviewed the offender declined to comment about the drugs found on his person or in his car. He claimed that he would be shot if he did so. He claimed to have no knowledge of the large quantities of drugs found elsewhere in the warehouse. It was in those circumstances that he had pleaded guilty to the first two counts relating to the items which were found either on him or in his car, but on the morning of the trial he offered a basis of plea which was accepted by the Crown in relation to the other matters in the following terms:

"1. For a short time prior to my arrest I was prevailed upon to act as a custodian for drugs that were being hidden on two of the derelict sites I was working at. Pressure was put upon me by threats that my employer would be told of my previous criminal convictions. 2. Until 1st May 2005 I never handled any of the drugs. I did not know the exact hiding places nor the precise quantities of drugs involved. I did however know that the site where I was apprehended was being used to store illegal drugs and I accept that, in my role as custodian, I had possession of any drugs stored at that site. 3. On 1st May 2005 I was persuaded to move the drugs in [count 1] from one site to the other. 4. The drugs in [count 2] were placed in my car by one of those for whom I was minding the drugs. 5. I accept that, in minding the drugs as described above and facilitating access to them by others, I possessed those drugs in [counts 3, 4 and 5] with intent to supply them."

It was in those circumstances that the offender was sentenced against a background of an appalling criminal record, although it did not include any offences relating to drugs. It did, however, include two sentences of eight years' imprisonment for offences of robbery and three convictions under the Firearms Act.

[7]On behalf of the Attorney General, Mr Penny has referred us to a number of authorities, but in particular Attorney General's References Nos 64 and 65 of 1997 (R v O'Gorman and Hibbard

[1999] 1 Cr App R(S) 237

, Attorney General's Reference No 146 of 2002 (R v Robert Stewart)

[2003] 2 Cr App R(S) 640

, and Attorney General's Reference No 81 of 2003 (R v Mohammed Attiq)

[2005] 1 Cr App R(S) 11

. From these Mr Penny submits that it can be seen that the sentence imposed was clearly unduly lenient. We agree. It seems to us plain that in this case the Recorder, who indicated in his sentencing remarks that he took six years' imprisonment as the starting point, to which he applied a reduction to give credit for the offender's plea, was in error. Bearing in mind in particular the lateness of the offender's plea in relation to the substantial proportion of the heroin in respect of which he was charged, we consider that the right figure for sentence, allowing him credit for his plea, would have been one of six years' imprisonment. That would have taken into account the fact that the Recorder was minded, as he did, to order the offender's return for a substantial proportion of the unexpired licence period of the previous sentence.

[8]Bearing in mind double jeopardy and the matters which can properly be taken into account by way of credit, namely such credit as was appropriate for the pleas of guilty, and the fact that the offender had no previous convictions for drug offences, the sentence which we consider appropriate today is one of five years' imprisonment and we accordingly so order. In doing so we have also taken into account the material provided on the offender's behalf which shows that whilst he has been in prison he has made extremely good use of his time and is clearly considered of some value within the prison system. That sentence of five years will run consecutively to the period of eighteen months of the unexpired portion of his licence period.

[9]MR EVANS: My Lord, can I raise one matter? I have been looking at the relevant provisions. When he was sentenced, Mr Recorder Biddle applied the principle that 160 days were to be taken into account as against the sentence which he imposed. My concern is that now that the original sentence has been quashed and a new sentence put in its place, that this court --

LORD JUSTICE LATHAM: Out of an abundance of caution we would undoubtedly wish to make sure that that aspect of the Recorder's order is not interfered with in any way and therefore would indicate that the remand period that was ordered to be taken into account by the judge in relation to the sentence he imposed should likewise be taken into account in relation to the sentence that we have substituted.

[11]MR EVANS: Thank you very much. _____________________________________