Attorney General's Reference No. 116 OF 2005 [2006] EWCA Crim 728

Case No 200506340/A8[2006] EWCA Crim 728
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 15th March 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE MAURICE KAY
MR JUSTICE MCKINNON
MR JUSTICE LANGSTAFF
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NO 116 OF 2005
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MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL
MR N R STELLING appeared on behalf of the OFFENDER
J U D G M E N T

LORD JUSTICE MAURICE KAY:

[1]We grant leave to the Attorney General who brings this matter before the court pursuant to section 36 of the Criminal Justice Act 1988. The offender is now 44 years of age. On 11th November 2005 in the Crown Court at Warwick he was convicted by a jury of two offences: count 1, supplying a controlled drug of class A, and, count 2, possession of a controlled drug of class A with intent to supply. The drug in question was ecstasy.[2]The background facts were as follows. On 31st July 2004 the offender attended an all night rave, convened under the title "Global Gathering", which was held at Upper Marston Airfield near Stratford upon Avon. He was due to work behind the bar in a tent with some others, including a man called Twentyman. The offender took 530 ecstasy tablets into the bar area with him. The street value of those tablets was in the region of £2,500. Once in that area, he passed a bag containing 261 of the tablets to Twentyman. It was that act which provided the factual basis for count 1.[3]The suspicions of security guards were aroused. The offender and Twentyman were taken away from the bar area and searched. A bag containing 269 ecstasy tablets was found in a bag belonging to the offender. That provided the factual basis for count 2. In addition, he had on his possession £100 in cash in £10 notes.[4]In police interview the offender denied that he had passed any drugs to Twentyman. He said that he had no knowledge of the tablets that had been found in his own bag.[5]Twentyman never faced trial. Sadly, he died in November 2004.[6]At the trial of the offender his defence was that Twentyman alone had been responsible for the presence of the drugs. That defence was rejected by the jury.[7]Upon the delivery of the verdicts Mr Stelling, on behalf of the offender, invited the judge to adjourn for the preparation of a pre-sentence report. However, the judge seized the initiative and started to refer to the possibility of a suspended sentence. It seems that what drove him to that consideration was the fact that the offender is the father of a daughter aged 17 and a son aged 14, both of whom are at an important stage of their education. The offender is the sole carer of the children, their mother and he having parted company some ten years or so ago. He has brought the two children up alone since that time.[8]After a brief adjournment and some submissions the judge proceeded to pass suspended sentences of two years' imprisonment in relation to each offence. In so doing he said this:
"I have absolutely no doubt in my mind that you took those drugs with Twentyman into that all-night festival to sell. ... There was the best part of £1,300 profit in that for you that night. Twentyman may well have been the instigator but you, I am satisfied, fell in with that scheme pretty promptly. What has to be spelt out is who the likely customers were going to be. The likely customers ... were young people. Those tablets not only can be a stimulant but they can also kill. ... You, the father of a 14 and 17 year old, in my judgment, were, with Twentyman, prepared to supply and sell those drugs to people as young as your own children. Absolutely reprehensible. ... You are 43 years old. You have no convictions for drugs. I treat you as a man of good character. You have an excellent work record and people have come here to speak highly of you. You are in employment and that employment is guaranteed until April of next year ... But on 31st August you jeopardised all that. These offences were committed whilst the old law was in place and there is a power for me to suspend such sentences if I find that there are exceptional circumstances."
[9]The judge went on to find exceptional circumstances related to the domestic factors and particularly the interests of the two children. The 14 year old son has had learning difficulties, but under the care of the offender has improved significantly and is now in mainstream education, and, as we speak, about to commence his GCSEs. The 17 year old daughter is due to sit her A levels this year and hopes to proceed to university. The judge attached the utmost significance to all of that. Nevertheless, he described the offender as a "greedy fool" and passed the suspended sentences to which we have referred.[10]On behalf of the Attorney General Miss Whitehouse submits that there is an aggravating factor in this case, namely the sheer volume of ecstasy tablets that were in the possession of the offender on the night of his arrest. She refers to the two mitigating factors as a lack of previous convictions relating to drugs and the fact that the offender is the sole carer of his two teenage children.[11]We observe that the judge was disposed to treat the offender as a man of good character. In fact, he has a history of minor offences, in modern times almost entirely related to driving, but we observe that on 4th January last year he was sentenced to three months' imprisonment for driving whilst disqualified and must have been separated from his children for some weeks as a result of that sentence.[12]Miss Whitehouse draws our attention to a number of authorities which have been concerned with cases similar in one way or another to the present case so far as the actual offences were concerned. She refers to the cases of Jones (1994) 15 Cr App R(S) 856, Antonio Paparella [1996] 2 Cr App R(S) 165, Hendry [2002] 1 Cr App R(S) 126 and AttorneyGeneral's Reference No 136 of 2002 (Anthony John Richardson) [2003] 2 Cr App R(S) 92. In Jones a sentence of four years for the supply of 27 ecstasy tablets was considered appropriate. That was after a trial. In Paparella the sentence was one of three and a half years. That involved a supply of ecstasy at a nightclub. The amount of tablets numbered 20 and there had been a plea of guilty. In Hendry the appellant was a doorman at a public house. He pleaded guilty to three supplies to undercover police officers. His sentence was reduced from five years to four years. In the reference of Richardson a non-custodial sentence involving the supply of ecstasy to friends and associates was considered to merit a sentence of three and a half years following a plea of guilty, but that was reduced to one of two years on the double jeopardy principle that applies in references such as this.[13]It seems to us, having perused the observations of the judge, first, when he raised the question of a suspended sentence with counsel and, secondly, when he was passing sentence, that he succumbed to the error of starting with a desire to suspend the sentence before considering what the appropriate length of sentence was. Of course, under the regime that existed at the time no sentence in excess of two years could be lawfully suspended.[14]In our judgment, following a trial and having regard to the quantity of tablets, the circumstances and venue of the offences and the motive of greed, the appropriate sentence in a case such as this was one of five years' imprisonment. That, we apprehend, is entirely consistent with the range of sentences considered in the authorities to which we have referred. If we were passing sentence at the conclusion of the trial that took place that is the sentence which we would have imposed. We have no doubt that the sentence of two years' imprisonment, whether suspended or not, was unduly lenient and to a very substantial extent. Having regard to the principle of double jeopardy, we shall reduce the sentence from one of five years in the case of this offender to one of three years and nine months. Accordingly, the Attorney's reference and application are granted.

LORD JUSTICE MAURICE KAY: Miss Whitehouse, do we have to make any order whereby the new sentence is brought to the attention of the offender?

[16]MISS WHITEHOUSE: My Lord, yes. The normal order is that the offender should surrender to a police station within 24 hours because the sentence only takes effect from that time. If your Lordships would order that. Otherwise it takes effect from the time he was sentenced.

LORD JUSTICE MAURICE KAY: Having regard to his domestic circumstances, would there be any problem if we said he must surrender within seven days?

[18]MISS WHITEHOUSE: Not at all. No, my Lord. The sentence to take effect from the time he surrenders.

LORD JUSTICE MAURICE KAY: That would allow him a little time to make arrangements. We will say seven days. Thank you both very much.