Attorney General Reference No 017 Of 2011 [2011] EWCA Crim 1319

[2011] EWCA Crim 1319Case No 201101606 A6
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 12 May 2011
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE PITCHFORD
MR JUSTICE TREACY
Venue RECORDER OF BIRMINGHAM - HIS HONOUR JUDGE WILLIAM DAVIS QC
(Sitting as a Judge of the CACD)
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL'S REFERENCE NO 017 OF 2011
(MICHAEL MANDALE)
Computer Aided Transcript of the Stenograph Notes of
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Ms E Schutzer-Weissmann appeared on behalf of the Attorney General
Ms A Whalley appeared on behalf of the Offender
J U D G M E N T

LORD JUSTICE PITCHFORD:

[1]The offender is 43 years of age. On 25 February 2011 at Carlisle Crown Court for an offence of possessing 80.68 grams of the class A drug heroin at 37 per cent purity with intent to supply, he received a sentence of 12 months' imprisonment, suspended for 24 months, with a 12-month supervision period and a requirement that he undertake 240 hours of unpaid work. Her Majesty's Attorney General seeks leave to refer this sentence to the full court as unduly lenient, and we grant leave.[2]On 17 June 2010 the offender was stopped while driving a Peugeot motor car northbound on the M6 motorway. He was accompanied by a female passenger, a young woman with whom he had been in a relationship for several years, but from whom he had been separated for a short time before he returned to England from Spain.[3]Inside the driver's door pocket of the vehicle was a plastic bag containing heroin in two clear plastic wraps, weighing respectively 27.4 grams and 53.28 grams. The evidence for the prosecution was that the value of the drug on the street was just over £8,000.[4]The offender made no comment in interview, but he was later to submit a basis of plea, which was accepted. He enlarged upon his personal circumstances in interview with the author of the pre-sentence report.[5]The offender admitted that he was a courier for the drugs, delivering them to Penrith from London. He was to be rewarded with five grams of heroin. At the prosecution's valuation, the benefit he was receiving was £500.[6]The offender himself had acquired a dependency upon heroin following the collapse of his food business in Spain, the breakdown of the relationship to which we have referred and an accident causing him painful symptoms which required while he was on remand reconstructive surgery to his Achilles tendon. He told the author of the pre-sentence report that he had returned from Spain with £4,000 in cash, which had been dissipated to a large extent by virtue of his drug taking.[7]On 29 November 2010 the offender pleaded guilty to the charge. When the sentence hearing was listed for 18 January 2011, the matter was considered by HHJ Batty QC. While indicating that in his view a custodial sentence would be appropriate, he was prepared to adjourn sentence for further enquiries to be made. He reserved the matter to himself. However, on 25 February 2011, the date of sentence, mitigation was heard and sentence passed by HHJ Forrester QC.[8]The offender had no recent convictions. He was effectively sentenced as a man of good character. The time which would have counted towards a custodial sentence, it is agreed between counsel, was 107 days. The learned judge, in the course of her sentencing remarks, referred to a period of 145 days. What she was intending to convey was that she would wish to give credit for the fact that there was a period of time, we think 38 days, when the offender, while not on an electronic tag, was nevertheless the subject of a curfew for a period of 12 hours. That period did not, therefore, count under either section 240 or section 240A of the Criminal Justice Act 2003, and if the judge was going to give credit for that time, which of course she had a discretion to do under her general sentencing powers, the way that she would have to achieve it was by reducing the sentence, rather than by adding the days to be counted.[9]By the time of sentence, the offender had weaned himself from heroin and heroin substitutes. He was assessed by the author of the pre-sentence report as a low risk for re-offending. His parents had offered him a job in one of their two local businesses in the Penrith area.[10]Mr Rogerson, who appeared for the prosecution, interrupted during the course of Judge Forrester's remarks to Ms Whalley, who represented the offender at the sentencing hearing, to point out that a non-custodial sentence would be outwith the guidance of the Court of Appeal in Aramah and successive cases. Notwithstanding the judge's apparent anxiety as to the propriety of imposing a non-custodial sentence, she did so.[11]In her sentencing remarks, she explained her reasons as follows:
"As to the actual sentence to be imposed ... one looks at the amount of drugs involved but also one looks at the circumstances of the offender. You told the court through your basis of plea and the probation officer that this was the first and only time you had acted as a drugs' courier. You did so for financial reasons as your money had run out and you were addicted at that time to heroin and your payment for couriering the drugs was a relatively small amount of heroin for your own use. I accept that and there is no information to the contrary. What is also clear is that at that time in your life you were going through a difficult period which is all set out in the pre-sentence report, but having lived and supported yourself successfully in Spain, you had returned to this country, you had the injury to your leg which turned out to be a lot more serious than first thought and for various other matters you had got into a heroin addiction. It is always very sad to see somebody like yourself before the court for any offence, but particularly for this type of offence when it is clear that you have had a lot of opportunities in your life and fortunately many of them still exist. I have references from your friends and family, you have a supportive family who are here in court with you today and it is very much to your credit that you have managed to overcome your addiction and in fact now no longer need treatment for it. It is perhaps an unusual situation in that you are actually on bail to appear here at court. That bail was granted so that you could obtain treatment, the necessary treatment, for your leg injury and, as I have been told, that is not quite complete yet although I am told that within the next four weeks or so you should be able to walk again satisfactorily. So, in the light of all these circumstances, I am dealing with you as a person effectively with no previous convictions, as you have nothing relevant and because of the fact that it was a one-off occasion and the circumstances you were in at the time, my starting point would be a period of three years' imprisonment. I would reduce that by one third because you pleaded guilty at the first opportunity. That takes it to two years' imprisonment. If I were to impose that upon you today you would only serve 75 days, a period of ten weeks. That is because you have a total of 145 days to count towards the service of the sentence. I am satisfied that in all it would be far better for the community for you to remain in the community now that you have overcome your drug addiction and to become a useful member of that community. So what I intend to do with you is impose the most serious suspended sentence that I can and I will make it clear to you that if you breach that order you will come back to court and you will go to prison."
[12]Those who are involved in the supply of class A drugs will derive, the court has emphasised on many occasions in the past, limited mitigation from their personal circumstances. The reason for this approach is the terrible damage which their activities occasion to others. This was a planned journey with about 27 grams of heroin at 100 per cent purity. The offender was not a low level dealer simply feeding his own addiction. He was close to a distributor or wholesaler, who trusted him to make the journey between London and Penrith, with product whose street value ran into several thousands of pounds.[13]It is submitted on behalf of the Attorney General that the appropriate starting point for an offence such as this was seven to seven and a half years. Asked for the justification for such a starting point, it was submitted that those who are involved in conveying drugs are more seriously involved in the activity of distribution of drugs than are the dealers themselves on the street.[14]This is a submission with which we are unfamiliar and which we do not accept. The culpability of the individual will depend upon all the circumstances. We would trace the evolution of sentencing for drugs offences, in short, as follows. In Aramah [1982] 4 Cr App R (S) 407, the Court of Appeal set guidelines for sentencing of those who were convicted of importation, supply and possession with intent to supply class A controlled drugs. At a time when the maximum sentence was 14 years' imprisonment, the court observed that seldom would a sentence of less than three years' custody be appropriate for those convicted of the supply or possession with intent to supply class A controlled drugs.[15]By section 1 of the Controlled Drugs (Penalties) Act 1985, the maximum sentence was increased from 14 years to life imprisonment. In Satvir Singh [1988] 10 Cr App R (S) 402, the court reconsidered the Aramah guidance in respect of supply offences in the light of the increase of the maximum sentence. Lord Lane CJ, giving the judgment of the court, said that the starting point for this type of offence should be five years at least, both for supplying and for possession with intent to supply. Lord Lane continued:
"It should perhaps be noted in this aspect of the matter that the assistance which can be derived by the sentencing court from the amount of the drug actually found in the possession of the accused is limited. It is the scale and nature of the dealing which are material factors."
[16]In fact, the court has since been concerned to consider all aspects of the offending in the assessment of the seriousness of the offence: three factors in particular,(1) the quantity and purity of the drug being dealt, stored or conveyed;(2) the position occupied by the offender in the hierarchy of distribution between importation at one end and supply on the street at the other; and(3) the duration of involvement and the persistence with which the offender committed drugs offences.[17]Carrying, warehousing and minding class A drugs with intent to supply remains, save in the most exceptional circumstances, an offence for which an immediate sentence of custody will be appropriate. In the experience of this court, the starting point will usually be in the range of five to seven years, depending upon factors (1) and (3) identified above. With quantities around or above one kilogram of class A drug at 100 per cent purity, the starting point is likely to be higher.[18]The Attorney General relies upon the decision of this court in Attorney General's Reference (No 146 of 2002) (Robert Stewart) [2003] EWCA Crim 1010; [2003] 2 Cr App R (S) 107 at paragraph 14. This court viewed a starting point of seven to seven and a half years as appropriate for a courier knowingly carrying 363 grams of diamorphine at 100 per cent purity. For more recent examples of sentences imposed upon those who mind or convey drugs, we refer to the appeals of Jeline Williams [2010] EWCA Crim 1726 and Allan [2010] EWCA Crim 726.[19]As we have said, the amount being carried by this offender was 27 grams at 100 per cent purity. The quantity was therefore modest by comparison with that considered by the court in Attorney General's Reference (No 146 of 2002). There was no evidence that this was other than a single and isolated offence. The value of the offender's reward was, however, significant - up to £500. The distance travelled was substantial. The offender must have been close to the distributor and was clearly trusted with a valuable consignment.[20]In our view, the starting point selected by the judge, taking into account those features of mitigation which she identified, was only just within the appropriate range, which would have been, in our view, three to four years. It was agreed that the offender should receive full credit for his plea of guilty, the effect of which was to produce a sentence of two years' imprisonment. The issue for the judge was whether it was appropriate to return the offender to custody.[21]In our view, it clearly was appropriate to return him to custody. There is an important public interest in ensuring consistency of sentencing, particularly in a field as sensitive as class A drug distribution. It is important that those who lend themselves to the distribution of class A drugs entertain no doubt that upon conviction they will be going to prison, and that the public has confidence that that is the case.[22]In assessing the period of time which the offender would actually serve in custody should she impose a sentence of two years' imprisonment, the judge, as we have observed, found that he would be detained for a period of only ten weeks. We have asked counsel who represented the offender at the sentence hearing whether there was any indication as to how the judge reached that conclusion, and there was none. It is apparent that the calculation was erroneous.[23]In our view, two years' imprisonment immediately imposed was the least sentence which should have been considered. We now have to decide whether we should exercise our discretion to quash the present sentence and impose an immediate sentence of imprisonment instead.[24]A further two months have elapsed. We have a supplementary report from the Probation Service. We are informed that the offender has now completed about 100 hours of the unpaid work programme. Unsurprisingly perhaps, given his antecedents, he is making good progress under the supervision order and has not relapsed his determination to avoid class A drugs. We have received confirmation that the relationship with the young woman who accompanied him in the car when the offence was committed continues, and that he supports her in her suffering from anxiety and depressive symptoms, together with epilepsy. The offender's mother has written to the court expressing her view that her son has continued his rehabilitation with humility and hard work.[25]It is the view of this court that it has no alternative but to reinforce the public interest in imposing immediate sentences of custody upon those who commit such offences as this offender did. We shall therefore quash the orders made by the judge in the court below and substitute a sentence of 20 months' imprisonment. We reach that sentence by adopting the judge's starting point and giving full credit for the plea of guilty. We deduct three months' imprisonment from that figure to take account of unpaid work, supervision and the fact that this man is facing sentence for the second time today. We also deduct a period of about 30 days for the fact that the offender was kept upon curfew for 12 hours a day, although not being tagged. This will mean that his date of release will be calculated by the prison on the basis that he is entitled to 107 days.[26]The sentence will therefore be 20 months' imprisonment, and 107 days will count towards that sentence. The offender will surrender to Penrith Police Station by 4pm this afternoon. The sentence we have imposed will take effect from the time the offender surrenders to custody.