Mashoud, R. v [2008] EWCA Crim 2523

[2008] EWCA Crim 2523Case No 2008/3249/A3
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 14 October 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE MOSES
MR JUSTICE TUGENDHAT
HIS HONOUR JUDGE GILBERT QC
(Sitting as a Judge of the CACD)
Between
R E G I N ACrownv
Between
MAKKI MASHOUD
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 H James appeared for AppellantMr C Crowe appeared for Crown
J U D G M E N T
[1]MR JUSTICE TUGENDHAT: This is an appeal against a sentence of imprisonment of 10 years which is brought by leave of the single judge.[2]On 23rd May 2008 in the Crown Court at Northampton before His Honour Judge Bray the appellant was convicted of two counts of possessing a controlled drug of class A with intent to supply. The first count was in respect of 0.57 grams of cocaine. The second count was in respect of 9.57 grams of heroin. He was sentenced to 10 years' imprisonment on each count concurrent, subject to an order that 95 days spent in custody should count towards that sentence.[3]The facts are as follows. On 22nd November 2005 the appellant had been sentenced to four years' imprisonment for possession of heroin with intent to supply. It was while he was in prison serving that sentence that his cell was searched by prison officers on 6th February 2007. During that search officers recovered the two quantities of drugs to which we have referred, together with a package containing a mobile telephone and two chargers. It was the appellant's defence that he had been given the package by another inmate and told that it contained the telephone and chargers only. Plainly the jury were satisfied that that was not true, as indeed was the judge.[4]When passing sentence

the judge said this:

"The jury have found you guilty on overwhelming evidence of possessing cocaine and heroin with intent to supply. This was a very serious offence. Cocaine and heroin are the two most dangerous drugs being supplied in this country. Hundreds of people die each year from heroin alone. I completely reject your account of holding these drugs for someone else. You sought to tell the jury a pack of lies about your having turned over to a new life. This was a serious amount of heroin, over nine grams, capable of producing about 200 deals in prison and worth over £2,000. All this is aggravated by the fact that you were already serving a sentence of four years' Imprisonment for a previous offence of a like nature. There is, of course, a serious problem with drugs in our local prisons, including Wellingborough. Those judges who like myself regularly sit at this court are aware of the true extent of it. These courts must pass serious deterrent sentences upon drug dealing in prison to try and stamp it out."
[5]The appellant has five previous court appearances for ten offences between May 1997 and 2005, in addition to the sentence imposed on 22nd November 2005, to which we have already referred. These included possession of class A drugs in 1997 and possession of class B drugs in 2002. There is a prison report which speaks well of him.[6]The grounds of the appeal are three. First, the judge was wrong to pass sentence on the factual basis that he did. The point taken is that the judge should have sentenced on the basis that he was doing no more than holding the drugs on behalf of someone else. The second ground is that the judge was not entitled to pass a deterrent sentence. The point being taken is that the judge, so it is said, was passing sentence in relation to what the judge said was a particularly local problem, without the statistics to support such a basis. Finally, the sentence is not in line with other cases.[7]There is nothing in either of the first two grounds. The judge was fully entitled to reject the appellant's account. And in relation to the matter of deterrence, as we read the judgment he was not referring to a supposed local problem but to the well-known problem applying to prisons generally.[8]So the only real ground of appeal that is arguable is the third, namely that the cases relating to similar quantities and circumstances (that is a prisoner in prison found with drugs) should not be sentenced to a sentence of 10 years' imprisonment even after a trial. Reference was made to the case of R v Prince [1996] 1 Cr.App.R (S) 335 and R v Appleton [1999] 2 Cr.App.R (S) 289. In addition we have read Tanveer Waheed [2004] 1 Cr.App.R (S) 26.[9]We accept that in the light of the sentences imposed in those cases, the first two of which were sentences of five years on a plea, the sentence in this case is too high. Following a conviction by the jury, as occurred in this case, there being no mitigation for a plea of guilty, in our judgment the proper sentence was seven years. Accordingly, we quash the sentence of 10 years on each count and substitute a sentence of seven years' imprisonment on each count to be served concurrently and subject to the order that the 95 days already spent in custody should count towards the sentence. To this extent the appeal is allowed.