Bondzie, R. v [2016] EWCA Crim 552

[2016] EWCA Crim 552Case No 201600490 A2
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM CROWN COURT AT CANTERBURY
HHJ O’MAHONY
T20157245
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/05/2016
Before
LORD JUSTICE TREACYMR JUSTICE WYNN WILLIAMSMR JUSTICE GARNHAM
Between
Marco BondzieAppellant
Mr D. Ramble (instructed by CPS) for CrownMr P. Hamill (instructed by Tosswill & Co) for AppellantHearing Hearing date: 21st April 2016
Judgment Approved
[1]This appellant pleaded guilty on 13th November 2015 in the Crown Court at Canterbury to 3 counts of supplying class A drugs and one count of being concerned in the supply of a class A drug. He was sentenced on 7th January 2016 to a total of 4 years and 10 months’ detention in a Young Offender Institution. Counts 1-3 which were the supply offences attracted a sentence of 3 years. Count 4, being concerned, received 4 years and 4 months concurrent. In addition a 6 month suspended sentence imposed on 12th December 2014 for two offences of possession of class A drugs was activated in full and ordered to run consecutively.[2]Counts 1-3 involved supplies to an undercover police officer in Ramsgate, where the police were conducting an operation targeting drug dealing. On 29th April 2015 the officer met the applicant who provided three wraps containing crack cocaine and heroin, with purity values between 10 and 30%. On the next day the officer contacted the appellant by phone, he having provided a number on the previous occasion. As a result of her request they met and the appellant provided her with three wraps of heroin costing £25. The heroin had a purity of 29%.[3]Count 4 took place on 14th May 2015. The officer made contact with a phone number through which she understood drugs could be supplied. She asked for some heroin and was told to go to an alleyway in Ramsgate. Shortly afterwards she met the appellant and another man who provided her with a wrap of heroin, whose purity was 24%. She paid £10 for the deal.[4]The appellant was 20 years of age at the time. In 2013 he was cautioned for possessing a class A drug. In December 2014 he admitted 2 counts of possession of heroin and crack cocaine. There were 32 wraps in all and the applicant received a sentence of 6 months detention in a Young Offender Institution suspended for 2 years. These offences therefore took place a little over 3 months after that court appearance. The appellant had convictions for other minor matters on his record. At the time of sentence he had a job available to him working for his father and his partner had recently given birth to a child.[5]The grounds of appeal submit that the sentence was too long. A starting point of 6 ½ years for the drugs offences was said to be unduly harsh given the level of criminality involved. It was not suggested by the Crown that the appellant was a major figure in the activities targeted by the police operation nor was it suggested that he was one of those responsible for bringing the drugs to the Ramsgate area from London. It was common ground that as a street dealer this appellant fell into category 3, significant role, of the definitive drugs guideline. For that category and role there is a starting point of 4 ½ years with a range of 3 ½ to 7 years custody. Thus the starting point prior to credit for guilty plea in this case fell towards the upper end of the available range.[6]The question arises as to whether that was appropriate in this case. The judge was undoubtedly entitled to take into account that this was not a single episode of drug dealing. Rather it represented activity over a 2 week period and had involved more than one type of class A drug. The judge’s assessment that the appellant fell into a significant role, was, no doubt, based, at least in part, on the fact that the appellant had been involved on a number of occasions.[7]An issue which has arisen appears in the judge’s sentencing remarks. “You have pleaded guilty to no less than 4 counts of supplying class A drugs and that is, on any view, serious criminality. It is even more serious because it took place within the context of a serious drug problem, identified to be as such, known to all concerned, the people involved in this case, in the East Kent area for some time and something which has necessitated an investigation of this kind because of the knowledge that it is such a desperately serious problem in the East Kent and Thanet area in particular. That means people’s lives are being ruined because of drugs. Further crime, activity going on by people who are addicted to support their habit and so on and that I have made known to all concerned in these cases from the word go that the court will be taking that into account from the evidence placed before the court.”[8]It may well be, therefore, that the judge increased the starting point in this case by reason of prevalence. The single judge in granting leave thought that this was the case. It was a feature of the grant of permission that the court could consider the issue of prevalence in this case.[9]The Sentencing Guidelines Council’s guideline on Overarching Principles: Seriousness provides as follows:
“1.38 The seriousness of an individual case should be judged on its own dimensions of harm and culpability rather than as part of a collective social harm. It is legitimate for the overall approach to sentencing levels for particular offences to be guided by their cumulative effect. However, it would be wrong to further penalise individual offenders by increasing sentence length for committing an individual offence of that type. 1.39 There may be exceptional local circumstances that arise which may lead a court to decide that prevalence should influence sentencing levels. The pivotal issue in such cases will be the harm being caused to the community. It is essential that sentencers both have supporting evidence from an external source (for example the local Criminal Justice Board) to justify claims that a particular crime is prevalent in their area and are satisfied that there is a compelling need to treat the offence more seriously than elsewhere.”
The guidance then continues:
“The key factor in determining whether sentencing levels should be enhanced in response to prevalence will be the level of harm being caused in the locality. Enhanced sentences should be exceptional and in response to exceptional circumstances. Sentencers must sentence within the sentencing guidelines once the prevalence has been addressed.”
[10]Sentencing levels set in guidelines such as the Drugs Guideline take account of collective social harm. In the case of drugs supply this will cover the detrimental impact of drug dealing activities upon communities. Accordingly offenders should normally be sentenced by straightforward application of the guidelines without aggravation for the fact that their activity contributes to a harmful social effect upon a neighbourhood or community. It is not open to the judge to increase sentence for prevalence in ordinary circumstances or in response to his own personal view that there is “too much of this sort of thing going on in this area”.[11]Firstly, there must be evidence provided to the court by a responsible body or by a senior police officer. Secondly, that evidence must be before the court in the specific case being considered with the relevant statements or reports having been made available to the Crown and defence in good time so that meaningful representations about that material can be made. Even if such material is provided, a judge will only be entitled to treat prevalence as an aggravating factor if(a) he is satisfied that the level of harm caused in a particular locality is significantly higher than that caused elsewhere (and thus already inherent in the guideline levels);(b) that the circumstances can properly be described as exceptional and(c) that it is just and proportionate to increase sentence for such a factor in the particular case before him. It is clear therefore, that a court should be hesitant before aggravating a sentence by reason of prevalence. Judges will be only too well aware of the types of harm which are caused by drug dealing and will not be assisted by statements of the obvious. Only if the evidence placed before the court demonstrates a level of harm which clearly exceeds the well understood consequences of drug dealing by a significant margin should courts be prepared to reflect this in sentence. If judges do so, they must clearly state when sentencing that they are doing so.[12]In the present case the Court and defendants arrested as a result of the police operation were served with a witness statement from a Detective Chief Inspector Swan who had been the senior investigating officer for the police operation which had targeted drug dealing activities in the Thanet district. The witness statement runs to 6 pages considering the nature and effect of organised drug dealing networks within that area, referring not only to the harm caused by drug dealing on a significant scale but also to associated violence, intimidation and targeting of the vulnerable.[13]We understand that the judge sentenced a number of offenders arising from the police operations against drug dealing in Ramsgate at hearings, including the present case, which took place over several days in January 2016. At the outset of those hearings the Detective Chief Inspector’s witness statement was read to the court. That undoubtedly explains the judge’s reference to “the evidence placed before the court” in the judge’s sentencing remarks quoted at paragraph 7 above. It does not appear that the officer’s evidence was challenged or that any evidence adduced in rebuttal, or that any adjournment was sought for that purpose.[14]At the hearing before us prosecuting counsel indicated that he had asked for a witness statement from the officer in charge of the operation for the purpose of giving an overview to the court as to the nature of the operation. Mr Swan’s statement was what resulted. Although he had read Mr Swan’s statement on the first day of the sentencing hearings, (but not on the day when this offender appeared before the court), he had made no submission on prevalence to the judge, nor had he referred the judge to the guideline dealing with it.[15]At the hearing involving this offender, Mr Ramble made no specific reference to the Swan statement in opening nor did he invite the judge to consider reflecting prevalence in his sentence at any stage.[16]Mr Hamill stated that in the absence of any express reference to prevalence or Swan’s statement at the hearing, he had not regarded it as an issue to be tackled in addressing the judge.[17]The judge himself had provided to all defendants prior to sentencing a document entitled “General remarks as to approach to sentence”. It stated that the purpose of the document was to advise defence counsel of matters which “may affect sentence one way or the other so that they can make informed preparation”. The only relevant paragraph for our purposes is paragraph 5 where the judge stated:
“It is hardly necessary for me to repeat judicial comment for as long as anyone can remember as to the pernicious effect of the trade in class A drugs, in particular both as to the effect on addicts and the increase on general time committed by those addicted so as to finance their habit. The guidelines are there for all to see but there will of course be careful attention to each case on its own facts and circumstances. Without being definitive, it may be that in the vast majority of cases the appropriate category will be 3 but not necessarily of course in all.”
[18]Mr Hamill stated that in the light of that he took the view that the judge did not regard the situation in the Thanet area as exceptional and so did not address the possibility of a prevalence factor. We note that in the judge’s document there is no reference to prevalence or the Swan statement.[19]This episode reveals the need for clarity if the issue of prevalence is to play a part in the sentencing exercise. If the Crown intends to invite the court to consider that matter, it must expressly say so at the hearing, identifying the materials upon which it relies as evidence and referring the judge to the relevant guideline. If a judge of his or her own motion is contemplating prevalence as a factor, he or she should clearly identify that as a matter to be addressed in submissions to the court. Any sentence imposed should then identify if prevalence has been a factor and provide reasoning so that the parties, and possibly this court, may understand how it has influenced the sentencing decision.[20]We have considered the content of Mr Swan’s witness statement. It undoubtedly reveals an all too familiar picture of the effects of significant drug dealing in areas where such activity takes place on any scale. We think that there is considerable force in the observation that it does not reveal a picture significantly different from that obtaining in other parts of the country, particularly inner cities. The highest that the matter could be put was that there was a large amount of intelligence prior to the police operation showing an increase in class A drug dealing activity. Concerning as the statement is, we have doubts as to whether the circumstances are exceptional.[21]In any event, we think that the way in which the matter proceeded below was less than satisfactory in the absence of clarity about the question of prevalence at this appellant’s hearing. We return to the sentence imposed in this case. As already stated the starting point of 4 years 6 months could properly be increased to reflect the two types of drug involved and the commission of offences on three separate dates. As against that, this was a relatively young offender who, setting to one side matters primarily reflected in the consecutive activation of the suspended sentence, was not previously heavily convicted. Balancing those factors in relation to the starting point could not in our judgment have justified an increase in sentence to 6 years 6 months prior to credit for guilty plea. It would therefore appear as if the judge must have included some part of that increase to reflect prevalence.[22]If that was not the case, we take the view that the judge’s figure prior to credit for guilty plea was too high. For the reasons given above, we do not consider that it was satisfactory to take account of prevalence both on the basis of the evidence available and in the circumstances of this appellant’s hearing. Looking at the matter in the round we think that a sentence of a little over 5 years was appropriate for this offending. With credit for a guilty plea this would result in a sentence of 3 years and 6 months to which should be added 6 months to run consecutively in activation of the suspended sentence. That gives a total sentence of 4 years in place of the term imposed below. The appeal is therefore allowed and we achieve the intended result by substituting on count 4 a term of 3 years and 6 months. To that extent this appeal is allowed.

Cited in 2 later judgments