Darling & Ors, R v [2009] EWCA Crim 1610

No: 200901221 A8, 1201 & 1203 A5[2009] EWCA Crim 1610
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 30th June 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PILL
MR JUSTICE BURNETT
HIS HONOUR JUDGE HALL
Sitting as a Judge of the Court of Appeal Criminal Division
R E G I N A
v
(1) JAMES WILLIAM DARLING
(2) STUART ROBERT WEATHERSTON
(3) MARTIN DAVID PUNTON
Computer Aided Transcript of the Stenograph Notes of
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Mr M O'Neill appeared on behalf of the First and Second Appellants
Mr J Elvidge appeared on behalf of the Third Appellant
Mr P Simpson (Higher Court Advocate) appeared on behalf of the Crown
J U D G M E N T
Between
Darling & OrsDefendantRCrown

LORD JUSTICE PILL:

[1]These are appeals against sentences imposed at the Newcastle Crown Court. James William Darling, on 25th September 2008, pleaded guilty to offences for which he was sentenced along with 13 other people by His Honour Judge Evans on 6th February 2009: counts 1 and 2, supplying a Class A drug (heroin), 5 years' imprisonment on each count concurrent, and for possession of a Class C drug (cannabis) no separate penalty. The total was therefore one of 5 years' imprisonment with a direction that the 197 days spent on remand should count towards the sentence.[2]Stuart Robert Weatherston pleaded guilty on 25th September 2008 to count 2, and a further count subsequently added on 6th November 2008. He was sentenced on count 3, being concerned in the supply of a Class A drug (heroin), to 4½ years' imprisonment, and count 2, possession of a Class A drug (heroin), no separate penalty. The total was therefore 4½ years' imprisonment.[3]Martin David Punton pleaded guilty on 3rd October 2008. He was sentenced on counts 1 and 2, supplying a Class A drug (heroin), to 5 years' imprisonment on each count concurrent, with a direction that the 127 days spent on remand should count towards sentence.[4]I set out the facts in each case briefly in the same order as appears on the list, though the offences were not committed in the same sequence. The police were conducting "Operation Blowtorch", a test purchase operation targeting Class A drugs in the Berwick-upon-Tweed area. The officers disguised their activities by travelling in a car full of clothes, such as tracksuits and trainers, and purporting to be traders in those goods. On 11th June 2008 a test purchase officer spoke to the appellant Darling and Matthew Clazie and asked who was selling drugs. The officers had had previous discussions with the men about clothing. The officer said he wanted heroin and the appellant said he dealt for a man called John. Prices were discussed. The appellant telephoned John to arrange for two bags of heroin which the officer said he would buy as a tester. He added that he would buy larger amounts later that week if the heroin was good. After an exchange of telephone calls, the appellant and the officer met and the appellant supplied two wraps for £20. They contained 0.98 and 0.126 grams of heroin at 16 per cent purity (count 1). Clazie acted as a look out. The officer agreed to buy an eighth of an ounce of heroin the following Friday.[5]On 13th June the appellant telephoned the officer and said the eighth of an ounce would be ready that afternoon. Officers went to the appellant's flat. He said they had to go out to collect the drugs. At a car park one of the officers handed over £150. They then returned to the appellant's flat. There was meant to be an eighth of an ounce of heroin, but the appellant only supplied 2.99 grams instead of 3.5 grams. The purity was 59 per cent.[6]The appellant was arrested on 23rd July 2008 and a small amount of cannabis was found in his possession (count 4). Initially the appellant denied dealing in heroin.[7]The co-accused Clazie contested the case. He was convicted of two offences of supplying heroin (counts 1 and 2). He was sentenced to 51 weeks' imprisonment, suspended for 18 months with a supervision order and other requirements. We understand that it was the same sentencing judge who conducted that trial. He would therefore have had an opportunity to consider in the course of that case the involvement of the appellant Darling.[8]In the case of Weatherston, two undercover officers spoke to him on 7th February 2008. He said he was on methadone and asked the officers whether they were on "gear". When they said they were, he said he was going to be sorted with some crack cocaine later, and he gave a mobile telephone number to one of the officers. They subsequently arranged to meet at a golf course. The appellant asked one of the officers for money for the heroin and £20 was handed over for two bags. The appellant asked to borrow a further £10, which the officer handed over. The appellant gave £30 to a Tracey Ross and she handed over three wraps of heroin. The appellant kept one of them (count 2) and gave the other to the undercover police officer. The wraps contained 153 milligrams and 173 milligrams of heroin at 58 per cent purity (count 3). Weatherston was arrested on 25th July 2008. He said that he had just been a donkey doing mates a favour.[9]Punton's involvement was later than that of Weatherston's. On 24th June 2008 test purchase officers met a man who telephoned the appellant and placed an order for a gram of heroin. The officers were directed to a road in Berwick where they were approached by the appellant and another man. The appellant said he wanted clothing for the heroin, and he selected from their stock in the vehicle £50 worth of clothing and handed over a wrap which contained 1.23 grams of heroin at 29 per cent purity (count 1).[10]On 5th July one of the officers contacted the appellant and asked for an eighth of heroin. The appellant said he could not supply that amount. The officer then asked for a gram and the appellant agreed to supply one for £50. They met in a supermarket car park, and the appellant supplied 0.93 grams of heroin at 31 per cent purity. He was arrested on 23rd July and made no comment in interview. His offences were committed whilst on bail for an offence of possessing heroin.[11]All three men fell to be sentenced under the provisions of section 110 of the Powers of Criminal Courts (Sentencing) Act 2000, to which we will refer.[12]Darling is 40 years old. He has 27 previous convictions and his offences include 11 drugs offences. These include an offence in 1996 of possessing cannabis with intent to supply, in 1998 of being concerned in the supply of heroin, for which he was sentenced to 51 months' imprisonment, and in 2002 with supplying heroin and possessing heroin with intent to supply, for which he was given a Drug Treatment and Testing Order.[13]Weatherston is 34 years old. He has 48 previous convictions, mainly for offences involving dishonesty and offences against the person. There are, however, four drugs convictions which include being concerned in supplying cannabis in 1996, possessing heroin with intent to supply in 2001, and being concerned in supplying heroin in 2002.[14]In each case it was acknowledged and is acknowledged by counsel (Mr O'Neill appearing for Darling and Weatherston and Mr Elvidge for Punton) that section 110 does apply. Their submission is that the judge, having found as he appears to have done that the rigours of section 110 should not be applied, took the wrong approach to sentencing, and that in any event the sentences imposed were manifestly excessive.[15]Section 110 provides:
"(1) This section applies where -- (a) a person is convicted of a Class A drug trafficking offence committed after 30th September 1997; (b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of two other Class A drug trafficking offences; and (c) one of those other offences was committed after he had been convicted of the other. (2) The court shall impose an appropriate custodial sentence for a term of at least seven years except where the court is of the opinion that there are particular circumstances which -- (a) relate to any of the offences or to the offender; and (b) would make it unjust to do so in all the circumstances."
[16]That section must be read with section 144 of the Criminal Justice Act 2003 which deals with reduction in sentences for guilty pleas. I need not read subsection (1) which makes provision for a discount for guilty pleas, and would apply in the present case. Subsection (2) provides:
"In the case of an offence the sentence for which falls to be imposed under subsection (2) of section 110 or 111 of the Sentencing Act, nothing in that subsection prevents the court, after taking into account any matter referred to in subsection (1) of this section, from imposing any sentence which is not less than 80 per cent of that specified in that subsection."
[17]The judge's sentencing remarks must be considered in the light of those statutory provisions. The judge had no fewer than 14 offenders to sentence on 6th February 2009. He first made general comments about Operation Blowtorch and drug trading. The judge referred to the "hierarchy of suppliers", and in relation to the operation he stated:
"It was to that end on this occasion that the police sought to infiltrate the drug taking and supplying community within Berwick by deploying a number of undercover officers using a trade in counterfeit clothing as their cover, in order to seek out and identify those who were involved in the drug trade. It is a very dangerous business indeed and was so for the four officers, particularly if they had been exposed. It may be that for the most part those of you who I have to sentence today come nearer to the bottom of the ladder, that is the street traders. I accept that for most of you your involvement is limited to supplying at a level which may not have done much more than enable you to fund your own habit or provide a modest supplement to your income or benefits. However, it has to be said that the trade of the street trader is a vital one, for without you this miserable life-destroying business could not flourish."
We agree with the judge's analysis of the situation. Each of the appellants came within the category defined by the judge. One of the other defendants was sentenced to a term of 7 years' imprisonment.

The judge then stated:

"In each case in passing sentence upon you I have had regard to the sentencing guidelines provided both by the Sentencing Guidelines Council and by the Court of Appeal. I have taken into account that for the most part you pleaded guilty at an early stage and I have given credit for the same in the sentences which I have passed."
On behalf of each of the appellants, a full one third discount was claimed, the judge having found that subsection 2(a) and (b) applied in these cases. Mr Simpson, who has appeared today for the prosecution and who was present on the day of sentence, agrees that each of the appellants was, applying ordinary sentencing principles, entitled to a discount of one third.[18]The judge then dealt with the appellants, and I will refer to them in the sequence in which the judge dealt with them rather than in the sequence I have followed hitherto. In relation to Punton, he stated that it was his third conviction for a Class A trafficking offence and noted that there had been an early plea of guilty on a written basis:
"Your dealing is limited, but in the first place you were doing all of this within months of emerging from serving a sentence of 15 months and at a time when you were on licence for that offence. More importantly, you have engaged in the behaviour which brings you before this court on two previous occasions. It is right to observe that on those previous occasions when you were brought before the court for drug trafficking offences you were met with non-custodial sentences, the courts on those occasions preferring to deal with you by way of community orders which were intended to address your own addiction. The law, as you know, is that you fall to be considered for a minimum sentence of 7 years. Mr Elvidge, on your behalf, has invited me to allow a reduction of 20 per cent for your pleas of guilty, which I do. Beyond that, given that these provisions about mandatory sentences are intended to be both punitive and intended to act as a deterrent, there is little that would justify departing from the basic rule. However, I do bear in mind the limited offending which on this occasion you fall to be dealt with for, and the relatively limited nature of the previous offending."
The judge did there refer in terms to an allowance of 20 per cent for guilty plea, notwithstanding his earlier statement that a full allowance was appropriate. We take it that, while the judge did not specifically refer to that percentage when dealing with the other appellants, the same approach was adopted in their cases.[19]In the case of Weatherston,

the judge stated:

" . . . what makes your position so serious is the fact that this is the third occasion on which you have come before the courts for trafficking in Class A drugs. You have convictions in 2001 and convictions in 2002. It is clear that you are a hopeless addict, but the reality is that those who engage in this business, in whatever form, know -- and if they do not know they should know -- that if they engage in this business in that way and they do so for a third time dealing in Class A drugs, the sentence which they face is one of 7 years' imprisonment. That is so whatever the precise nature of the dealing. It is right to observe that you did plead guilty and you are for that reason entitled to a significant reduction in the sentence which would otherwise be appropriate. However, I had to consider whether it is possible to reduce that sentence still further. I have decided that I am going to reduce that sentence still further to take account of the limited involvement on previous occasions and your limited involvement on this occasion. I have to bear in mind generally in this case the level of culpability of the defendants overall, and it seems to me, having looked at your particular case, that it is appropriate to regard you as involved at the lower end. Nevertheless, it is still a serious matter."
[20]In the case of Darling,

the judge stated:

"I have, however, had an opportunity to see your dealing at first hand when I watched, as did the jury, your dealings with the undercover officers when in the company of Clazie [the person to whom we have referred earlier] . . . It is right to say that you have a further conviction for drug trafficking. It has to be said that you do not appear to have learned your lesson. In 2007 you completed a drug rehabilitation order imposed for simple possession offences, but here you are engaged in this activity once more within a relatively short period. You said that you were tempted by your dealer from Liverpool."
[21]It appears to us that in his sentencing remarks the judge has carefully assessed the relative culpability of the many defendants who were caught in the "Blowtorch" operation. No complaint is made on the ground of disparity. The judge considered the circumstances in each case carefully, and considered the circumstances of individual defendants in relation to each other. Both Mr O'Neill and Mr Elvidge referred to the modest scale and modest involvement of the appellants in the drug trade. Mr Elvidge has helpfully submitted in his advice a summary of many cases in which similar offences have been dealt with, though dealt with in a regime which did not include section 110.[22]It appears to us that the learned judge did misconstrue the statutory scheme in relation to discount for guilty plea. He appears to have approached the sentencing exercise on the basis that, even though he had found that it would be unjust to impose the appropriate custodial sentence set out in section 110(2), he was still bound by the provision in section 144(2) which limited the discount for a guilty plea to 20 per cent. It is unfortunate that neither prosecuting counsel nor defence counsel appear to have assisted the judge on this point. I have no doubt that the section 110(2) argument was made and it was submitted that it would be unjust to take a starting point of 7 years, but the consequences of a finding favourable to the appellants in those terms were not considered by the judge. It would have been better if the judge had made clear that he was going to apply the proviso and given counsel further opportunity to address him on that basis, though it is not clear that had he given an indication he would have received that assistance.[23]Mr Simpson, for the Crown, agrees with defence counsel that the limit to 20 per cent discount does not apply once a judge finds that it would be unjust to apply the minimum sentence of 7 years. He accepts that once the judge has found that it would be unjust to apply that provision, sentencing is at large, applying ordinary sentencing principles including the guidelines provided by the Sentencing Guidelines Council.[24]It could be argued, although we would not see merit in the argument, by reference to the opening words of section 144(2) ("In the case of an offence the sentence for which falls to be imposed under subsection (2) of section 110 . . . ") that the sentence was under section 110(2), even though subparagraphs (a) and (b) have been held to apply. That would not, in our judgment, be a correct construction of section 144(2). Parliament has not intended the expression to apply to a sentence, albeit still under section 110(2), where it has been held to be unjust to apply the minimum term. We do not consider that judges are limited to a discount of 20 per cent once they have found it would be unjust to apply the minimum term of 7 years.[25]Accordingly, it appears to us that the judge misdirected himself on that issue and we should, in each case, allow the appropriate discount which, apart from the provisions of section 144, would have been a discount of one third. In the first of the present cases the appellant was allowed 20 per cent discount and we assume that the judge limited the discount in that way when dealing with the other two appellants. We consider that a further allowance should be made.[26]We also consider the submissions that the sentences should be further reduced by reason of the limited involvement. We have considered the cases to which counsel have referred. They include Afonso [2004] EWCA Crim 2342, where it was stated in this court, by Rose LJ VP, that there may be cases such as the present where custodial sentences are not required. In the case of Darling, a non-custodial sentence has been attempted not long before the present offences were committed. But where such an order is not appropriate, Rose LJ stated that, generally speaking, adult offenders in the category which had been identified, if it was their first drugs supply offence, should, following a trial, be short-term prisoners, and following a plea of guilty at the first reasonable opportunity, should be sentenced to a term of the order of 2 to 2½ years' imprisonment.[27]Amongst the cases cited by Mr Elvidge were Attorney General's Reference No 6 of 2006, where the court did not interfere with a sentence of 4 years and 6 months' imprisonment on a guilty plea to possessing 6.51 grams of heroin with intent to supply fellow addicts who were close to him and whom he supplied to fund his own addiction. In that case substantial custodial sentences had been imposed in the early 1990s but there had been a 12-year gap between those offences and the offence with which the court was dealing.[28]In our judgment, once appropriate discount for guilty pleas is given, the sentences imposed on the appellants were appropriate in all the circumstances. Our conclusions, therefore, are, first, that the judge was entitled to find that it was unjust to apply the minimum term, having regard to the low level of trading involved. Once he did so, ordinary sentencing principles and standards applied, though, in our judgment, a sentencing judge should keep in mind the Parliamentary intention that repeat offenders are to be dealt with firmly.[29]Ordinary sentencing principles applied and required an appropriate discount for a guilty plea. The judge was not bound by the 20 per cent which would have applied had he decided to impose the minimum sentence. We repeat, however, the judge's statement that low level street traders are an indispensable part of this unlawful and pernicious supply network, and sentencing judges will bear that in mind.[30]What we propose to do is in each case to quash the sentences imposed and in each case to make a reduction of 1 year to reflect the appropriate discount for guilty pleas. We do so not in a precise arithmetical way, but to reflect our view of the case, in particular the discount for guilty plea but having regard to the other factors we have listed. It follows that in the case of Darling a sentence of 4 years' imprisonment for each count concurrent will be substituted for 5 years' imprisonment. In the case of Weatherston, 3½ years' imprisonment will be substituted for the sentence of 4½ years' imprisonment, and in the case of Punton 4 years' imprisonment will be substituted for the sentence of 5 years. To that extent, these appeals are allowed. Allowance for the days spent on remand will remain.[31]Does anything else arise?[32]MR ELVIDGE: My Lord, representation orders.

LORD JUSTICE PILL: Yes. Thank you.