Dalessandro, R v [2008] EWCA Crim 1501

[2008] EWCA Crim 1501Case No 2008/1043/A1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 7 May 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE HUGHES
MR JUSTICE TREACY
SIR PETER CRESSWELL
Between
R E G I N ACrownv
Between
VINCENZO DALESSANDRO
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr M Lowe appeared for AppellantMr M Brookes-Baker appeared for Crown
J U D G M E N T

SIR PETER CRESSWELL: On 10th December 2007 at Northampton Crown Court the appellant, now aged 52, pleaded guilty and on 11th February 2008 was sentenced by His Honour Judge Bray as follows. Count 3, possession of a class B drug (amphetamine) no separate penalty. Count 4, possession of a class C drug (Diazepam) no separate penalty. Count 5, possession of a class C drug (Gammahydroxybutyrate - GHB) with intent to supply, 12 months' imprisonment. Count 6, possession of a class C drug (CDT) with intent to supply, six months' imprisonment consecutive. Count 7, possession of a class C drug (Clenbuterol) with intent to supply, six months' imprisonment concurrent. Count 8, possession of a class C drug (Mesterlone) with intent to supply, six months' imprisonment concurrent. Count 9, possession of a class C drug (Methandienone) with intent to supply, six months' imprisonment concurrent. Count 10, possession of a class C drug (Oxandrolone) with intent to supply, six months' imprisonment concurrent. Count 11, possession of a class C drugs (Oxymetholone) with intent to supply, six months' imprisonment concurrent. Count 12, possession of a class C drug (Stanazolol) with intent to supply, six months' imprisonment concurrent. Count 13, possession of a class C drug (Testosterone) with intent to supply, six months' imprisonment concurrent. Count 14, possession of a class A drug (MDMA), no separate penalty. Count 15, possession of a class B drug (amphetamine), no separate penalty. Count 16, possession of a class C drug (GHB) with intent to supply, 18 months' imprisonment consecutive. Count 17, possession of a class C drug (Diazepam) no separate penalty. Thus the total sentence amounted to three years' imprisonment.

[2]The appellant appeals against sentence by leave of the single judge.[3]The facts shortly were as follows. The appellant owned the Body Shapers Gym and a clothes shop attached to it in Kettering. On 23rd December 2004 police officers executed a search warrant there and recovered a number of drugs including steroids and GHB. His home address was also searched. Amphetamine and Diazepam were found in his bedroom. A number of syringes and devices to inject the steroids were also recovered from both premises. The appellant was arrested. When interviewed he denied possession of the amphetamine, but admitted possession of all the other drugs and steroids seized. He said they were all for his own use, hence counts 3 to 13.[4]On 10th March 2005 a further warrant was executed. A small number of ecstasy tablets, a small amount of amphetamine and a small amount of Diazepam was found along with 11.3 kilograms of GHB and a large amount of steroids. The basis of plea was that the GHB had been in fact on the premises in December but had not been found by the police. The appellant was interviewed and denied possession of the ecstasy and amphetamine, but admitted possession of all the other substances seized and again he said they were for his own use, hence counts 14 to 17. We will return to count 16 below. The total amount of GHB recovered was 1,299 grams. The total steroids was 651.745 grams. The minimum total value of them was between £14,612 and £81,873.[5]There was a basis of plea in this case. That read:
"The defendant pleads guilty to the counts of possession of GHB and the anabolic steroids with intent to supply on the following basis: A. He had for many years been a competitive body builder. In 2004, after a break, he decided to resume competition. B. He had obtained significant quantities of steroids with a view to using them over the following year building up to competition in 2006. C. He accepts that he intended to supply some of the steroids within a small group of experienced competitive body builders. All had previously used steroids. He denies selling steroids to general users of his gym. D. Similarly with the GHB he accepts that he intended to use this himself but also to provide to the same small restricted group of fellow body builders. E. The GHB (count 16) was present in the store room in December 2004. It was not found/seized by the police until the search in March. The defendant had not acquired them in the interim period."

The judge in passing sentence said this:

"I give you credit for your pleas of guilty, albeit made on the morning of the trial. I bear in mind the basis of plea. I bear in mind the possession of GHB and the steroid drugs is not an offence in itself. I also bear in mind paragraphs C and D of your basis of plea, that you were supplying the drugs to a group of body builders. However, once you had supplied the drugs you must have known that you would have had no control over the subsequent use of the drugs. Some of these drugs could have had serious potential side effects. For example, GHB, of which you had a very large quantity for supply, can be used to produce euphoria and lack of inhibition with all the problems attached to that. As to count 16, I appreciate that these drugs were present at the time of the first police search. Nevertheless, the fact remains that you failed to get rid of the drugs even though you knew you had already been arrested. The amount of drugs in question is very large. There were over 10 kilograms of GHB alone. The value of the drugs is somewhere between £14,000 and £80,000. I bear in mind all the points in mitigation and the references put before me. I bear in mind your previous good character. Nevertheless, there must be a substantial custodial sentence..."
[7]The appellant was of previous good character. We have seen eleven character references.[8]Mr Lowe for the appellant made three principal submissions. First he contended that three years was manifestly excessive as a total sentence having regard to the guilty pleas, the age of the appellant, his previous good character and the limited basis of plea. Secondly, Mr Lowe submitted that consecutive sentences in respect of both counts 5 and 16 were inappropriate. Both counts related to GHB in the possession of the appellant on the same date. Thirdly, Mr Lowe referred to the delay which is set out in paragraph 10 of the advice. We will return to this delay below.[9]GHB became a class C controlled drug on 1st July 2003. Initially the maximum was five years but this was raised (generally in respect of all class C drugs) to 14 years with effect from 28th January 2004 as a result of section 284 of the Criminal Justice Act 2003.[10]We draw attention in particular to the basis of plea at E:
"The GHB (count 16) was present in the store room in December 2004."
To reflect this basis, count 16 of the indictment was amended to allege that on 23rd December 2004 (not 10th March 2005) the appellant had in his possession 11,316 grams of GHB. Thus the sentence had to reflect the fact that the appellant had in his possession this substantial quantity of drugs in December 2004.[11]In our judgment the consecutive sentence in respect of count 16 was wrong in principle because both counts 5 and 16 charged possession of GHB in December 2004 with intent to supply. Having regard to all the circumstances described above, in our opinion apart from the inexcusable and inordinate delay, an overall sentence of two years would have been appropriate.[12]The delay in this case is set out in paragraph 10 of the advice. The chronology is as follows:• 12th March 2005 first appearance at Kettering Magistrates Court.• 11th May 2005 original date for committal hearing, prosecution papers not ready and case put back for seven days.• 18th May 2005 papers still not ready, case discharged.• 27th April 2007 Crown Prosecution Service indicate that they intend to resurrect the case.• 12th June 2007 case committed to Northampton Crown Court. When allowance is made for the inexcusable and inordinate delay, the overall sentence should in our view be reduced to 18 months. For these reasons for the consecutive sentence in respect of count 16 we substitute a concurrent sentence of 18 months' imprisonment. Thus the total sentence becomes 18 months. To this extent the appeal is allowed.