McGuiness & Anor, R. v [2008] EWCA Crim 1956

Case No 200801683/1894/A4[2008] EWCA Crim 1956
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 6th August 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE TOULSON
MR JUSTICE ANDREW SMITH
HIS HONOUR JUDGE ROGERS QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
ANDREW JAMES MCGUINESS AND ANDREW ERNES HARTIN
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 Smith appeared for First AppellantMr K Thomas appeared for Second Appellant
J U D G M E N T

Lord Justice Toulson:

[1]On 30th January 2008, at Preston Crown Court, Andrew James McGuiness pleaded guilty to possession of amphetamine with intent to supply and simple possession of ecstasy. On the same day Andrew Ernest Hartin pleaded guilty to possession of amphetamine with intent to supply. On 6th March 2008 at Burnley Crown Court they were sentenced by His Honour Judge Byrne. McGuiness received consecutive sentences of 16 months' imprisonment for possession of amphetamine with intent and 12 months' imprisonment for possession of ecstasy, making 28 months' imprisonment in all, less 213 days spent on remand. Hartin was sentenced for possession of amphetamine with intent to 52 weeks' imprisonment suspended for two years with a two year supervision requirement and 100 hour unpaid work requirement.[2]They each appeal against their sentences by leave of the single judge.[3]At the time of these offences McGuiness was living at 50 Westminster Road, Morecambe. The property was searched by the police on 9th August 2007 and they found bags containing 320 grammes of amphetamine. Of that amount 245 grammes had a purity of 5 per cent and the rest had a purity of 11 to 12 per cent. The total street value was put at £3,200. The officers also found a bag containing 30 ecstasy tablets and 3.5 grammes of powder that contained ecstasy along with electronic scales and plastic bags. Those were the drugs which were the subject of the two counts to which McGuiness pleaded guilty.[4]Hartin was seen to visit 50 Westminster Road. He lived in a caravan in Heysham. When that was searched, officers found a total of 296 grammes of amphetamine at 41 per cent purity. The estimated street value was £6,000 to £6,500. There were also syringes, weighing scales and rolls of polythene bags. The officers seized £2,000 in cash from Hartin. The amphetamine found at Hartin's caravan was the subject of the count to which he pleaded guilty.[5]The judge sentenced both appellants on the basis that they were low level drug dealers, selling to fund their own drug habits.[6]McGuiness is aged 33. He has 25 previous convictions for a total of 42 offences. The majority were offences of dishonesty or driving offences, but significantly they include a conviction in the Isle of Man in 1998 for possessing cocaine with intent to supply for which he received four years' imprisonment, and also a simultaneous conviction for producing cocaine for which he received three years' imprisonment concurrent. He also has later convictions for possession of cannabis and amphetamine.[7]Hartin is aged 42. He has 29 previous convictions for 68 offences. They include a large number of convictions for simple possession of cannabis and amphetamine.[8]In the case of McGuiness we are not persuaded that a sentence of 16 months' imprisonment for possession of a class B drug, amphetamine, with intent to supply was wrong in principle or manifestly excessive, given, particularly, the fact that he had a previous conviction for possession of a class A drug with intent.[9]The main burden of Mr Smith's submission has been that he should not have received a consecutive sentence for possession of ecstasy tablets. It is to be borne in mind that the possession with intent to supply offence related to class B drugs. Ecstasy is a class A drug. The quantity of which he was found in possession, though not large, was not minimal. We do not think that it can be said to have been wrong in principle in these circumstances to have imposed a consecutive sentence, but we do think that a consecutive sentence of 12 months was in all the circumstances excessive.[10]We will allow the appeal to the extent of quashing the consecutive sentence of 12 months' imprisonment on count 8 for possession of ecstasy and substituting a sentence of six months' imprisonment, but it will remain consecutive so that the total sentence on McGuiness will be 22 months' imprisonment, less 213 days spent on remand.[11]The position in relation to Hartin was rather unusual. In his sentencing remarks

the judge said to him:

"I think that had you been convicted after a trial the appropriate sentence in your case would have been 21 months' imprisonment but because of your plea I have reduced that to 14 months."
[12]It so happened that Hartin had already spent seven months in prison on remand.

The judge continued in his sentencing remarks as follows:

"If I passed upon you a custodial sentence of 14 months you would serve only seven months, half that, and be released on licence. That is exactly the position you are in now. You have served approximately seven months. Therefore I do not think it is necessary to pass an immediate custodial sentence today but this is a serious offence and it merits custody. I therefore propose to pass upon you a suspended sentence of imprisonment."
[13]The sentence that he imposed was, as already recorded, 52 weeks suspended for two years. In addition, he imposed an unpaid work requirement for 50 hours.[14]In doing so

the judge went on to say to Hartin:

"Do not make the mistake of thinking that this case is over today. In some ways it is just beginning. This sentence will hang over you for the next two years."
[15]In these circumstances the appellant asks the court to quash the sentence which the judge in fact imposed and substitute that which he declared he would have imposed in ordinary circumstances, that is to say a custodial sentence of 14 months.[16]At first blush to quash a suspended sentence and impose an immediate custodial sentence might appear to be increasing the severity of the sentence and contrary to the powers of this court under section 11(3) of the Criminal Appeal Act 1968, but that would be to confuse reality and form. As is rightly pointed out, the effect of the judge's sentence was to place the appellant in a worse position than if the judge had passed an immediate custodial sentence of 14 months. As the judge himself observed, in some ways the sentence that he was imposing was only just beginning, whereas if he had imposed a sentence of 14 months' imprisonment it would have been completed by the time it was imposed, provided only that the appellant kept to the terms of his licence.[17]In our judgment, the appellant's argument is well founded. In these circumstances we do quash the sentence imposed by the judge and in place of it impose a custodial sentence of 14 months' imprisonment, less 213 days spent on remand. The effect of that is that this appellant will not have to return to custody.