Attorney General's Reference No. 8 of 2007 [2007] EWCA Crim 922

Case No 2007/00836/A8[2007] EWCA Crim 922
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday 2 April 2007
The Strand
London WC2
B e f o r e:
THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
(Lord Phillips of Worth Matravers)
LORD JUSTICE LATHAM
(Vice-President of the Court of Appeal Criminal Division)
and
MR JUSTICE TREACY
Between
R E G I N ACrown
ATTORNEY GENERAL'S REFERENCE No. 8 of 2007
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
- v -
Between
DANIELLE CLARE KRIVEC
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4ATelephone No: 020-7421 4040(Official Shorthand Writers to the Court)
MISS Z JOHNSON appeared for ATTORNEY GENERALMR N FOOKS and MR G CAMPBELL appeared for OFFENDER- - - - - - - - - - - - - - - - - - - - -J U D G M E N T

THE LORD CHIEF JUSTICE:

[1]This is an application by the Attorney-General pursuant to section 36 of the Criminal Justice Act 1988 for leave to refer to this court for review a sentence which he considers to be unduly lenient. The facts are unusual and because of that we granted leave at the outset of the hearing. The Sentence[2]On 13 December 2006, in the Crown Court at Lincoln, before His Honour Judge Machin and a jury, the offender Danielle Krivec was convicted of one count of possessing a Class C controlled drug (cannabis) with intent to supply and one count of possessing a Class A controlled drug (cocaine) with intent to supply. At the same time her co-defendant Patrice Roberts was convicted on these two counts and further convicted on additional counts in relation to firearms offences.[3]On 19 January 2007, His Honour Judge Machin sentenced the offender to six months' detention suspended for two years on count 1 and to twelve months' detention concurrent suspended for two years, with an unpaid work requirement of 200 hours and a supervision requirement for two years on count 2. She was also ordered to pay £500 towards the prosecution costs.[4]Her co-defendant had been sentenced on the day of conviction to a total of ten years' imprisonment, of which eight years were in respect of possession of a Class A drug with intent to supply.

The facts of the offence

[5]The offender was aged 18 at the time of the offences. Her co-defendant was 20 years older. They lived together at his house at 12 Alison Street in Lincoln, and had done so for about two months before the offences of which they were convicted. The offender's relationship with the co-defendant had started two months before that and she had on occasion during those two months visited the house at 12 Alison Street. She was engaged in a two-year college course in beauty therapy and supported herself by working on a part-time basis as a waitress at the Marriott Hotel in Lincoln.[6]On 21 September 2006, police officers executed a search warrant at a shop owned by the co-defendant. They were searching for stolen goods. The offender was present, but was allowed to leave to go to college. Instead, she went to 12 Alison Street. There she found a number of police officers waiting outside. She let them into the premises. She was cautioned. She was asked whether there was anything on the premises which should not be there and she said that there was not. During the search of the house she was stopped from attempting to remove a carrier bag from the kitchen. This was found to hold a wash-bag containing cocaine with a street value of £750. On top of that bag there were six bags of cannabis. A bucket was found in the bedroom wardrobe which proved to have the offender's fingerprint on it. This contained more cannabis with a street value of £815.[7]At the trial both defendants pleaded not guilty. The offender's co-defendant called a witness, Mr Reidy, who gave evidence that the drugs in question had been placed in the house by him and belonged to him. The jury plainly did not believe him for both the offender and her co-defendant were convicted. The imposition of

The Sentence

[8]After the jury had retired to consider their verdicts, the judge invited prosecution and defence counsel into his room. There, to the surprise of both counsel, he said that he did not propose to impose an immediate custodial sentence on the offender, should she be convicted. Further, he told Mr Fooks who was acting for her, and who has appeared before us today, that he could make this fact known to her, which he did. The judge then asked prosecuting counsel whether he would seek to refer such a sentence to the Attorney General, to which prosecuting counsel replied that he was not in a position to comment.[9]While the co-defendant was sentenced immediately, sentencing of the offender was adjourned in order to enable a pre-sentence report to be prepared. This report by Miss Waller, a probation officer, is dated 10 January 2007. Miss Waller recorded that the offender maintained her contention that both she and her co-defendant were innocent. This made it difficult to assess her attitudes. Miss Waller concluded, however, that the offender's experience of the criminal justice system had had a significant impact on her future risk of re-offending, which was low. Her recommendation was as follows:
"5.5. My assessment of Miss Krivec's risks and needs highlighted no significant areas that would require a form of rehabilitation. She has stable employment, secure accommodation, financial stability and family support. It does not appear that she has any problems with illicit substances either. I have consequently been unable to identify any viable motivations or triggers for her committing this offence. As a result it has not been possible to identify any areas of work that would impact on her behaviour. Subsequently should the court be minded to sentence Miss Krivec by way of a community penalty I would propose that the main focus be that of punishment. 5.6. It would therefore be my recommendation to the court, should Miss Krivec be granted her liberty today, that she be sentenced by way of an order with a requirement to complete a number of unpaid work hours. It is anticipated that an order of this kind would re-enforce with her the seriousness of behaviour of this nature whilst also providing her with some of the 'worldly knowledge' that she states she lacks and as a result contributed to her current situation. I am of the view that her experiences to date will act as a deterrence to any future similar behaviour but unpaid work hours would consolidate this as a punitive requirement. 5.7. The court can attach this requirement to either a suspended sentence or community order, the former obviously being a custodial sentence and consequently more punitive in its own right. An order of that kind would allow the court to retain some sanction over Miss Krivec for the operational period and activate the custodial element should she breach the requirement or re-offend."
[10]At the sentencing hearing the prosecution was represented by Miss Sjolin, who had not prosecuted at the trial. Mr Fooks on behalf of the offender invited the judge to follow the suggestion of the probation officer and impose a suspended sentence. At this the judge observed that he would have to be persuaded that such a sentence would not be unduly lenient. Mr Fooks took this, correctly as it seems to us, as a reference to the likelihood that the Attorney General would respond to such a sentence in the manner in which he has. He erroneously informed the judge that the Crown would be "unable to appeal" because the offender had been convicted of an either way offence. Miss Sjolin, equally erroneously, confirmed that this was correct. The judge nevertheless sentenced the offender to a total of 18 months' detention. The reasons that he gave for doing so were as follows:
"Mr Roberts, I am quite clear in my own mind, was the prime mover in all this. He was the architect; he was the one who drove it forward, and I have no doubt it was all principally for his benefit. You, at half his age, because of what I am clear is your infatuation with him, did his bidding, and you did his bidding, it may be, I do not know, in persisting in your denial of these allegations, but I put it very much to your credit and therefore draw a significant distinction in sentencing between you and he, that you were half his age and that I have concluded without any difficulty at all that it was he who, as I say, was the architect and the prime mover in all this. That does not, I am afraid, sufficiently mean in the end that these offences are of sufficient absence of seriousness that I can accede to Mr Fooks' submission that I should not deprive you of your liberty. But I can tell you this: that it is not least your absence of remorse and total absence of remorse, as I see it, that causes me to be quite unable to allow you your liberty today; it is that and all the factors which I have indicated and the seriousness of the offences. But what Mr Fooks has said on your behalf has spectacularly and significantly reduced the term which I first had in mind as the one which you would have to serve, and the result of the reduction of which Mr Fooks has persuaded me is that the sentences that I impose upon you are on count 1, [six] months' in a young offender institution and on count 2, 18 months concurrent."
[11]After the sentencing hearing, both counsel went to see the judge in his chambers. Mr Fooks pointed out to the judge that his sentence had been at odds with the indication that he had permitted Mr Fooks to convey to the offender. In the result the judge called the offender back and amended his sentence. The reasons that he gave appear in the following exchange:
"JUDGE MACHIN: Mr Fooks, you and I have discussed this matter since I sentenced this lady. MR FOOKS: Your Honour, yes. JUDGE MACHIN: You reminded me of an observation I made about sentence, which was an expression which I then held of a then intent not, if I could avoid it, to deprive her immediately of her liberty. I imposed the sentence that I did this morning principally because of the material which is contained in the pre-sentence report, which I am bound to say somewhat surprised me in the way that it was bereft of any indication of remorse at all on the part of this defendant, even though she had been convicted and was facing, as she must have realised, a substantial sentence. However, I have come to the conclusion, particularly since the matter is not susceptible to an Attorney General's Reference, which I believed it to have been at the time when I sentenced her, in which case it would have been pointless my imposing a sentence which did not involve custody, because an Attorney General's Reference would almost certainly have then subjected her to a term of imprisonment. Since that is the situation, or rather since that is not the situation, and since I gave the indication that I did, and having observed as I did Miss Krivec's reaction when she was confronted with the fact that she was now going to serve a sentence of imprisonment, I have come to the conclusion that at her age and in her circumstances I can now deal with the matter differently."
And so, as we have indicated, he did.[12]Subsequently, on 20 February 2007 the judge wrote a letter to the Registrar in which he elaborated the reasons for imposing the sentence that he ultimately imposed. He said:
"The defendant Roberts gave evidence which persuaded me that his malign influence over Krivec was far greater than might have been inferred from the difference in their ages and that, joint enterprise though this was, his was both manipulative and domineering in relation to her. It was a measure of his character in this respect that he had, at the trial, persuaded a friend and his aged mother to give what must have been perjured evidence in his defence. The indication I gave was before I had seen the probation report. I gave it (in fact then believing that her offences were referable) because of Krivec's evident and immense distress towards the conclusion of the trial. Somewhat to my surprise the pre-sentence report was extremely unfavourable and I initially, with some hesitation, imposed an immediate term. Krivec was taken to the cells, again in a state of immense distress, and over the midday adjournment I concluded that the author of the report may have been unfair about Krivec and that I ought to revert to the sentence which I originally had in mind, the clang of the prison gates having had an obvious effect upon her. I informed counsel of what I intended to do. Had I not then been assured by counsel that the matter was not referable I would have set out in my sentencing remarks that matters which I have here set out."
[13]It would obviously have been better had the judge given a full explanation of his amended sentence at the time that he imposed it. Nor do we find it easy to reconcile what he did say when he imposed that sentence with the fact that he had been informed, shortly before he imposed the original sentence, that it could not be made the subject of a reference by the Attorney General. Certain things are, however, relatively clear. Before the verdict the judge formed the view, on the evidence that he had heard, that if the offender were convicted it would be appropriate to depart from the sentencing guidelines and to impose a sentence that would keep this young woman out of prison. He felt so strongly about this that he took the very unusual step of inviting counsel to his room, informing them of the view that he had formed, and telling counsel for the offender that he could reassure his client that if she were convicted she would not go to prison.[14]The judge explained his initial change of mind on the basis that the offender had received an unfavourable pre-sentence report. We find this a little difficult to understand. True it is that the offender persisted in denying her guilt, but this was consistent with her stance at the trial, which was attributable to the malign influence that her co-defendant had over her -- the very factor that had caused the judge to form a lenient view in the first place. Apart from this, the pre-sentence report was favourable and anticipated the possibility of a non-custodial disposal.[15]We are inclined to think that, in changing his mind and deciding to impose a sentence of detention, the judge was looking over his shoulder at the possibility that if he followed his initial intention this would lead to a reference by the Attorney General. The change of mind may well have occurred before the sentencing hearing itself and the judge may not initially have been reassured by counsel's erroneous submissions that it would not be open to the Attorney General to refer this sentence. Subsequently, reassured on this point, the judge reverted to his original decision.[16]We wish to make one thing clear. The oath taken by a judge to administer justice "without fear or favour, affection of ill-will" extends to imposing what the judge concludes to be the appropriate sentence, without being deterred by the fear of an Attorney's reference. That is not to say that a judge should not pay careful regard to sentencing guidelines, whether laid down by this court or by the Sentencing Guidelines Council. But these are only guidelines. There will be cases where there is good reason to depart significantly from the guidelines. In particular, this may be appropriate where the facts of the offence diminish its seriousness in comparison to the norm, or where there is particularly powerful personal mitigation. In such circumstances it is quite wrong for the judge to refrain from imposing the sentence that he considers appropriate because of apprehension that this may cause the Attorney General to intervene. We have no doubt that the Attorney General recognises that a departure from the guidelines, even if it is substantial, is not of itself to justify his intervention. The test for intervention is not leniency, but undue leniency. Leniency where the facts justify it is to be commended, not condemned.[17]In this case Miss Johnson has not sought to pursue some of the matters that were set out in the written reference. In particular she has not sought to pursue, as being of itself a ground for this reference, the disparity between the sentence imposed on Roberts, the co-defendant, and that imposed upon the offender. She simply drew attention to that fact as illustrating her main point which was that the offender's sentence deviates very significantly from what might be expected if regard was simply had to the guideline cases on possession of drugs with intent to supply. The issue raised is whether there was justification for the leniency unquestionably shown by the judge in the present case.[18]We deal first with the extent of the offender's involvement in the offences of which she was convicted. Having conducted the trial, the judge was best placed to form a view on this. There was not much evidence for him to go on. As Miss Johnson has pointed out, this was not a typical case of drug dealing where the police had carried out surveillance and where they adduced detailed evidence of the involvement of all participants. The judge clearly formed the view, and it seems to us that he was entitled to form the view, that whatever involvement the offender might have been found to have had as a result of the jury's verdict, her involvement in the offences was a peripheral one as a result of the fact that she was plainly wholly under the influence of a much older man. That conclusion it seems to us is buttressed by the evidence that the offender gave to the author of the pre-sentence report that she provided at the request of the co-defendant out of her earnings a contribution to their joint living expenses.[19]There was considerable personal mitigation. The offender had no relevant previous convictions. There was no evidence to suggest that she was sharing in the proceeds of drug dealing. On the contrary, she contributed to household expenses out of her earnings, which seems to us to be quite inconsistent with any suggestion that she and her co-defendant jointly benefited from drug dealing. Those earnings were the fruits of her employment as a waitress at the Marriott Hotel, where she had a good work record. Apart from this, she was studying at college in order to obtain qualifications in anticipation of setting up her own business as a beautician.[20]The offender has now performed 55 hours of the unpaid work to which she was sentenced and her response to supervision has been excellent.

Conclusion

[21]The judge had every reason for the unusual approach that he adopted to this case. He had every reason for taking a particularly lenient view of this offender and imposing a sentence which, being custodial, emphasised the gravity of the offending, but which, being suspended, reflected the fact that she was unlikely to offend again and that it was not necessary in the circumstances that she should go straight into detention.[22]For these reasons we shall leave this sentence undisturbed.

Cited in 2 later judgments