Dickinson, R v [2017] EWCA Crim 2067

Case No 201704541/A3

[2017] EWCA Crim 2067

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 31 October 2017

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE HOLROYDE

MR JUSTICE GREEN

HIS HONOUR JUDGE AUBREY QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

LYNSEY DICKINSON

Computer Aided Transcript of the Stenograph Notes of WordWave International Ltd trading as DTI, 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court)

Ms A Bright appeared for Applicant

J U D G M E N T

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LORD JUSTICE HOLROYDE:

[1]On 15th September 2017, in the Crown Court at Exeter, this applicant, Lynsey Dickinson, pleaded guilty to an offence contrary to section 40B(1)(A) and (6) of the Prison Act 1952 of conveying a List A article into a prison. On 29th September 2017 she was sentenced by His Honour Judge Mercer QC to 6 months' imprisonment. Her application for leave to appeal against that sentence has been referred to the Full Court by the Registrar.

[2]The facts can be briefly stated. The applicant, now aged 34 and effectively of previous good character, was visiting her boyfriend. He has a criminal record and at the relevant time he was remanded in custody to Her Majesty's Prison Exeter, awaiting trial on a very serious charge of robbery.

[3]She took with her, admittedly with the intention of delivering to her boyfriend, two tablets of the Class C drug zopiclone, 12 tablets of the Class C drug buprenorphine and 415 milligrams of the Class A drug crack cocaine. Upon her arrival at the prison she signed a declaration which gave a clear warning that it is forbidden to bring drugs into the prison and which warned of the prosecution of anyone who was caught doing so.

[4]It appears that she attracted the attention of prison officers, we infer because of a visibly nervous appearance. It also appears that she then appreciated that, having entered the prison, she would not succeed in passing through the searching procedure. She was seen to be placing something into a locker, and when the locker was searched the controlled drugs which we have mentioned were found.

[5]No pre-sentence report was prepared but none was necessary then or now because the defence had commissioned a very detailed psychiatric report by Dr Mark Turner, dated 16th September 2017, which provided the court with very full information about the applicant. At this stage of proceedings, we also have the advantage of a short report from the offender supervisor of the applicant at the prison where she is serving her sentence.

[6]We are very grateful to Miss Bright for her written and oral submissions on behalf of the applicant. Realistically she acknowledges that there is a significant element of deterrence in sentencing for this kind of offence. The introduction of controlled drugs into a prison is obviously inimical to good order and discipline within the establishment. There was before the sentencing judge a statement from the prison governor, which referred to the risk which drugs within the prison posed to the safety both of prisoners and of staff, and to the contribution which drugs make to serious violence, self-harm and significant debt issues among the prisoner population. But quite apart from that evidence, the applicant must have known that there are serious problems when drugs are spread amongst the prison population. She had, after all, signed the warning notice to which we have referred.

[7]In his brief sentencing remarks the judge said that he found it very difficult to accept that the applicant was not aware at the time what she was doing was wrong. We agree with that view.

[8]Acknowledging, as we say, the element of deterrence, and acknowledging that ample case law supports the proposition that offending of this nature usually calls for immediate imprisonment, Miss Bright nonetheless argues that in the particular circumstances of this case immediate imprisonment was wrong in principle. In her written submissions she advanced an argument to the effect that the judge took too high a sentence before giving the applicant full credit for her guilty plea. In any event, Miss Bright argues that it was wrong in principle to order the sentence to take effect immediately rather than suspending it. Summarising her submissions in a sentence, she argues that the learned judge gave too much weight to deterrence and insufficient weight to the personal difficulties and vulnerabilities of the applicant.

[9]Miss Bright relies on the information contained in the psychiatric report. She submits, and we readily accept, that the applicant's personal history is a sad one. Without needing to dwell on distressing details, we note that the applicant was involved in a serious road traffic accident in 2006, which resulted in serious physical injury necessitating a shoulder replacement. In addition, and relevantly for present purposes, it gave rise to anxiety symptoms which have continued to trouble the applicant when she is travelling and when she is in public places. In the years following the road traffic accident she suffered the double misfortune of losing both her parents at young ages, having cared for each of them during a terminal illness. Also within her family, she is close to a brother who sadly suffers from mental health difficulties. A short time before she was sentenced the brother had attempted (not for the first time) to take his own life. It is submitted on the applicant's behalf that the brother will suffer during her absence in prison.

[10]These misfortunes deserve the sympathy of the court. They set the background for this offence because, as the psychiatrist concluded at paragraph 12.1 of his report:

"In my view, the multiple bereavements and other stresses in recent years have left her emotionally vulnerable and dependent on individuals with whom she has relationships. In my view, emotional vulnerability and dependence may in part explain her involvement in the index offences."

[11]It comes as no surprise that in these circumstances it is submitted that the applicant committed the offence under emotional pressure. We can accept that the same emotional pressure contributes to her withholding details of what lay behind the offence, to her own disadvantage. But we feel able to draw inferences in her favour.

[12]Miss Bright also relies on a decision of a constitution of this court in R v Agus

[2017] EWCA Crim 1273

, an appeal against sentence by an offender who had carried four tablets of buprenorphine into a prison. The judgment of the court in that case was given by Warby J who at paragraph 7, having stated that those who convey drugs into prison can ordinarily expect a prison sentence, said:

"The authorities indicate a range of four to eight months."

Miss Bright, understandably, relies upon that sentence in support of her written argument that the sentence was too long in the present case. It is not however apparent from the judgment in Agus precisely which authorities had been cited to the court on that occasion, or to precisely which level of seriousness of offence the sentencing range relied upon by Miss Bright refers. She rightly does not suggest that a range of 4 to 8 months will cover all the levels of seriousness of offences of this nature. The maximum sentence for the offence is, after all, one of 10 years' imprisonment.

[13]Whilst it is true to say that there were some features of the circumstances in Agus, which may be regarded as somewhat similar to the facts of the present case, there were also significant features of dissimilarity, in particular the fact that this applicant was conveying a Class A controlled drug into prison. We therefore do not regard ourselves as bound to adopt the sentencing range stated in different circumstances by the court in Agus.

[14]Moreover, it is not clear whether in Agus the court was referred to the Sentencing Council's Definitive Guideline on sentencing for drugs offences. There is no sentencing guideline specifically referable to this offence contrary to the Prisons Act; but section 125(1) of the Coroners and Justice Act 2009 says that every sentencing court must follow "any sentencing guidelines which are relevant to the offender's case", unless of course the court is satisfied that in the particular circumstances it would be contrary to the interests of justice to do so. In R v Hamilton

[2016] EWCA Crim 78

, a constitution of this court concluded at paragraph 14 that:

"We think that it is legitimate for this court, in dealing with Prison Act cases involving drugs, at least to have regard to the definitive guideline on drugs offences, whilst taking care, as always, to avoid an over-mechanistic operation of the guideline."

It does not appear that Hamilton was cited to the later court in Agus.

[15]Miss Bright does not dispute the proposition that the court can have regard to the sentencing guideline in respect of drug offences. We have no doubt that that principle is correct. To give an obvious illustration of why that is so, one only has to consider the position of an offender who is apprehended just before he arrives at the prison in circumstances where there is clear evidence that he is conveying drugs to a prisoner. He would no doubt be prosecuted for an offence of possession with intent to supply, the sentencing guideline would apply and the fact that he was intending to supply the drug into a prison would be treated as a serious aggravating factor. It would be curious if the offender, having progressed as far as entering the prison and then being prosecuted for an offence contrary to the Prison Act, could invite the court simply to ignore the Sentencing Council's guideline in relation to drugs offences.

[16]Miss Bright recognises that when one has regard to the drugs guideline, looking in particular at the guideline in relation to possession with intent to supply of a Class A controlled drug, one finds that even for a lesser role, involving a small quantity of a Class A drug, the guideline indicates a starting point of 18 months' imprisonment and a sentencing range from a high level community order to 3 years' imprisonment. The starting point, of course, is before consideration of the aggravating feature of intending to supply a drug in a prison. It is a serious aggravating feature, both because of the risks to prison order which we have mentioned and also because the value of the drug within the prison system is substantially greater than its value on the street outside.

[17]As to whether a prison sentence which does not exceed 2 years can be suspended in a particular case, the Sentencing Council’s Definitive Guideline on imposition directs the court to consider a number of factors, some of which indicate that it may be appropriate to suspend and some of which indicate that it would not be appropriate to do so.

[18]Drawing these threads together, we think it is clear that the learned judge, in addition to giving the applicant full credit for her guilty plea, took into account the contents of the psychiatric report and the undoubted difficulties which the applicant has faced in her life. Although he did not explicitly address all of the factors listed in the imposition guideline, he made it clear that in his view the seriousness of the offence was the dominant feature in deciding whether suspension of the sentence was possible. We, for our part, accept that this was a sad case of a woman of effective good character who was vulnerable to having her will overborne and who was led by emotion to commit this offence. We accept, of course, that in deciding what sentence would have been appropriate after a trial, the court must keep in mind the initial frankness of the applicant when questioned by the prison officers who were to search her locker and the unhappy consequences for her of serving her prison sentence in a state of anxiety about the position of her unfortunate brother. We accept Miss Bright's submission that the applicant is now genuinely remorseful and unlikely to re-offend. Those are factors in the applicant's favour.

[19]But against all of that, we have to take into account the seriousness of this type of offending. An immediate custodial sentence is generally necessary when controlled drugs are conveyed into a prison, and in this case the judge was entitled to conclude that the personal mitigation available to the applicant did not outweigh the need to reflect that seriousness. The applicant's case is indeed a sad one, but unhappily it is not infrequently the case that those who are prevailed upon to commit offences of this kind do so through misplaced loyalty or affection.

[20]The sentence, in our judgment, was neither wrong in principle nor manifestly excessive. We can see no basis for interfering with the judge's decision that it was not possible to suspend the sentence and that it must take effect immediately.

[21]Accordingly, grateful though we are to Miss Bright for her submissions, this appeal cannot succeed. We think it right in all the circumstances to grant leave, but having done so we dismiss the appeal. WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400