Carroll, R v [2008] EWCA Crim 2728

Case No 200802963/A9[2008] EWCA Crim 2728
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 28th October 2008
Strand
London, WC2A 2LL
B e f o r e:
LADY JUSTICE HALLETT DBE
MR JUSTICE FOSKETT
HIS HONOUR JUDGE MORRIS QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrownv
Between
MICHAEL CARROLL
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 A Lodge appeared for Appellant
J U D G M E N T
[1]Mr Justice Foskett: On 6 May 2008 at Stafford Crown Court the appellant pleaded guilty to one count of possession of a class A drug, heroin, with intent to supply, one count of possession of a class C drug, cannabis, with intent to supply, and a further count of possession of a class C drug, cannabis resin, with intent to supply, those offences being committed on 11 November 2007 in the circumstances we will indicate shortly. He was sentenced by Mr Recorder Qureshi to a total of six years' imprisonment, comprising a sentence of six years' imprisonment in relation to the class A offence concurrent with concurrent 12 month sentences on the class C offences. The total sentence was expressed to be concurrent with a sentence already being served.[2]On 9 May 2003 at Liverpool Crown Court the appellant had been sentenced to an extended sentence of eight years' imprisonment, with a custodial element of five years, for three offences of robbery, one of attempted robbery, and three of possessing an imitation firearm. He was released on licence on 19 September 2006. As a result of the commission of the offences with which this case is concerned he was recalled to custody on 21 January this year.[3]He appeals against the sentences imposed with the leave of the single judge.[4]The circumstances of the offences were as follows. At about 2.30 pm on 11 November 2007 the appellant went to Stafford prison with a visiting order to see an inmate. The visiting order contained an express warning about the consequences of being caught with drugs. The visitors entrance used by the appellant had further warnings displayed.[5]On arrival the appellant was searched and a search dog indicated that he had drugs on him. The appellant produced a clingfilm wrap from the back of his trousers that contained three packages of powder containing a total of 15.7 grammes of heroin at 48 per cent purity with a potential value in prison of £6,280. The wrap also contained 11.5 grammes of cannabis and 8.68 grammes of cannabis resin which together had a prison value of £400.[6]He was arrested, interviewed and admitted going into the prison to pass drugs to the inmate he was visiting. He claimed that he had been put under pressure to do so, saying it was more than his life was worth not to do so.[7]The appellant was aged 28 at the date of the offences and 29 by the time he was sentenced. As will already be apparent he had previous convictions. He had been before the courts on eight previous occasions for 30 offences, including two convictions for possessing cannabis. The most serious matter was the matter to which we have already referred, which was in part motivated by cocaine misuse. Much of his previous offending had been drug related. He had not been involved in drug supply before.[8]Mr Adam Lodge, who represented the appellant before the Crown Court and before us, has submitted that a sentence of six years' imprisonment on a plea of guilty was too long in the circumstances, particularly by reference to sentences passed in other reported cases to which he had referred in his Advice on Appeal. He does not, of course, suggest that anything other than a substantial prison sentence was appropriate, but submits that six years was out of scale.[9]As to the general approach to this kind of offence we would venture to repeat what was said by this court earlier in this year in R v Suhail Akhtar and Mohammed Ashfaq [2008] EWCA Crim 791. Thomas LJ, giving the judgment of the court, said this:
"Those who attempt to supply drugs to prisoners require exemplary sentences. Drugs within a prison, even where the drugs are not heroin, cocaine or crack cocaine, are entirely inimical to the rule of law within a prison. They become the currency of a prison. They are used to extort or bully, and the evil that they do is even worse than the evil done within our open society. Those who try and smuggle drugs into prisons are dealt with, because of the problems in detection, by extremely harsh sentences. People have to be deterred."
[10]That mirrors what this court also said in R v Rogers [2007] EWCA Crim 2438 where Auld LJ, giving the judgment of the court and referring to a series of case to which the court had been referred, said this:
"Those authorities show that deterrent sentences are imposed on those who take drugs into prison because drugs inside prison have a much greater value than they have on the streets. Drugs are a form of currency in prison. They can be responsible for injury to persons, particularly prison staff. Such offences are too prevalent and require the imposition of deterrent sentences. These are not offences for which a nominal period of imprisonment is appropriate, despite the mitigation which may exist for the individual offender."
[11]The learned Recorder in his sentencing remarks noted that this court has in the past upheld sentences of between two and four years for, as he put it, tiny amounts of heroin being taken into prison. He would doubtless have had in mind when saying that Attorney General's Reference No 75 of 2002 [2003] 1 Cr App R(S) 109 where the offender had pleaded guilty to three offences of attempting to supply class A drugs to a friend in prison and had been sentenced to five months' imprisonment. In the course of his judgment the then Vice President of the Court of Appeal Criminal Division, Rose LJ, agreed with the submission of counsel for the Attorney General that the appropriate sentence should have been at least three years. In this case, of course, the amount was over 15 grammes with a substantial prison value.[12]The Recorder also made an oblique reference to the case of R v Dooley [2007] EWCA Crim 2748 decided in October 2007 when a sentence of five years' imprisonment on a 24-year old female trainee solicitor with no previous convictions was upheld for bringing into someone she claimed untruthfully that she was seeing professionally 10.6 grammes of heroin at 39 per cent purity and a total of a little over 13 grammes of cannabis. It appears that she did not receive full credit for her plea of guilty because she had, in the sentencing judge's view, put forward a false story about her knowledge of the heroin to engineer a reduced sentence. She had at one stage intended to pursue a Newton hearing. The Recorder said that that case gave some sort of guidance to the kind of sentence to be imposed in the present sentencing climate.[13]Mr Lodge submitted that that case involved a serious breach of trust that made it more serious than the present case, a submission that he has made about two other cases to which he referred in particular in his advice. They were R vWhenman [2001] 2 Cr App R(S) 87, where a sentence of seven years was upheld in respect of a prison officer of good character, who, on 15 or 20 occasions over a period of 16 months, supplied heroin to a serving prisoner. On any view that case involved a very significant breach of truth over a prolonged period. The other case was R v Mills [2005] 1 Cr App R(S) 38 where a serving prison officer had been sentenced originally to seven years' imprisonment for attempting to smuggle into prison 9.35 grammes of heroin at 20 per cent purity and admitted doing something similar on an earlier occasion, a sentence which was reduced by one year to reflect his offer to give evidence against a co-defendant.[14]We accept, of course, that those two cases, and indeed the case of Dooley, to some extent each involved a breach of trust that constituted an aggravating feature, a feature which is not present in this particular case.[15]However, in the appellant's case, whilst, as we have said, the same aggravating feature does not arise, there are other features that need to be noted. First, as we have already observed, the amount of heroin, 15 grammes, was a significant amount with a substantial prison value. Second, as someone well versed with the prison regime, the appellant must have known the risks he was taking, even if, as may have been the case, he was under some degree of pressure. Third, he was on licence for serious offences committed apparently because of his own involvement with class A drugs.[16]Against that background, notwithstanding the personal mitigation to which Mr Lodge has referred and to the progress that he is making in prison, we do not think that the sentence can be characterised as manifestly excessive. In those circumstances the appeal is dismissed.[17]We should say that we have considered also the submission that Mr Lodge made that the effect of what the learned Recorder did was to impose a six and a half year sentence. We do not see that that is the way in which the Recorder approached this matter. The appellant had been recalled administratively in relation to the extended sentence to which we have referred previously and had served a total of 93 days in relation to that prior to the imposition of the sentence by the Recorder in this case. The Recorder said that he had taken it into account in determining whether this sentence should be made consecutive or concurrent with the existing sentence. That, in our view, was entirely the correct course and we do not see any reason to interfere with the sentence passed on that account either.[18]Thus, as we have indicated, this appeal is dismissed.