England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		8th December 1998

LORD JUSTICE EVANS: Mr Justice Hooper will give the judgment in the case of Djahit and the Recorder of Bristol in the case of Marot.

MR JUSTICE HOOPER: On 6th July 1998 at the Crown Court at Snaresbrook the appellant pleaded guilty on re-arraignment and on 3rd August 1998 was sentenced as follows: for possession of a class A drug (namely heroin) with intent to supply, six years' imprisonment; for possession of a class B drug (cannabis) 12 months' imprisonment concurrent. The total sentence was therefore one of six years. A confiscation order in the sum of £6,005 was made under the Drug Trafficking Offences Act 1986.

The appellant had pleaded not guilty at the plea and directions hearing. At that hearing counsel for the appellant had asked for an adjournment to enable a conference to take place with the defendant. That conference did in fact take place a few days later. Following that conference a letter was sent to the Crown Court advising the court that the appellant now proposed to plead guilty. Although the matter had been scheduled for a trial in September as a result of that letter the case was brought forward to 6th July.

The appellant appeals against sentence by leave of the single judge.

The facts were as follows. On 25th September 1997 police officers were about to execute a search warrant at a shop and adjoining flat in east London. The appellant alighted from his motorcar and entered the premises. After a short while he left the premises and the officers approached and identified themselves. They informed him of the warrant and then with him searched the premises. Two plastic bags containing heroin were recovered from a door panel connecting the kitchen in the flat to a derelict rear room and two plastic bags containing a small amount of heroin were recovered from a cupboard in the kitchen. The appellant was searched and a further plastic bag containing a small amount of heroin was found in one of his socks. He was arrested. In all a total of 21.497 grammes of powder containing heroin was recovered. The street value of the drugs was estimated at £2,149.70 but the proportion of heroin in the powder was not ascertained. £6,005 in cash, a list of names and addresss and a set of scales with traces of heroin on them were found in bags under the sink. As to that list of names and addresses, which ran over some 10 pages, the appellant always denied that the list was anything to do with him. That denial can be contrasted with his ready admission that the other drugs paraphernalia did belong to him.

The appellant's home address was subsequently searched and a plastic bag containing a quantity of cannabis was found in a drawer in the front room. That quantity of cannabis formed the subject matter of count 2.

He is a man of no relevant previous convictions. There was a pre-sentence report available to the court which included the following at paragraph 7:

"Because he did not smoke heroin every day Mr Djahit had been able to persuade himself until now that he was not addicted. However, when he tried to stop he discovered that this was not the case. He went to the Hackney Drug Dependency Unit and had some counselling from an agency but generally he stopped using heroin with the assistance of his family. They have, he says, been very shocked at his position but absolutely supportive. He went to stay with his parents and basically did not come out until he was clean again; his family made sure that someone with was with him all the time. He says it was a very bad period and a very hard lesson, and as well as the obvious withdrawal symptoms he suffered from considerable depression.

8. Since then, Mr Djahit tells me he has not used heroin at all."

In passing sentence the learned judge first of all said that he would only give partial credit for the guilty pleas, they having not been entered at the earliest opportunity. Having heard from counsel, the circumstances in which the notification of the plea was delayed until a few days after the plea and directions hearing are such that, in our judgment, the appellant was entitled to full credit for the plea. The fact that he did not plead earlier appears to have been the responsibility of the solicitors who had failed to organise a conference with counsel prior to the day upon which the plea and directions hearing was to take place.

The learned judge said that he would assume that the drugs were not of a high purity and that the appellant was a relatively small time dealer who fed his addiction by selling to others. He pointed out, however, that he had managed to accumulate £6,005 in cash from his dealings which he classed as being used as "a float". He pointed out that the appellant had no other visible means of support and that this sum of money and that lack of support was an indication of the scale of the appellant's dealing. He went on to say that the type of offence was very prevalent and people who supplied on the street commonly received sentences of between four and six years. In his judgment the correct sentence, he said, was one of six years' imprisonment.

We turn to the law. It is well established that the starting point for sentencing offences of possession with intent to supply or of supply of class A drugs is "in general now five years at least" following a conviction: Satvir Singh (1988) 10 Cr.App.R (S) 402 at 406, adjusting the guidelines in Aramah (1983) 76 Cr App R 190, following the increase in 1985 of the maximum sentences.

In deciding the appropriate level "it goes without saying that the sentence would largely depend on the degree of involvement, the amount of trafficking, and the value of the drug being handled." "... [T]he nearer the source of supply the defendant is shown to be, the heavier will be the sentence."

As to the quantity of drugs found on a defendant, Lord Lane, LCJ, said in Satvir Singh at 406:

"It should perhaps be noted...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 the material factors."

As in this case there is often only one count of possession with intent or of supply. That does not prevent the judge from taking into account the admitted level of dealing as reflected by the sums of money and drugs paraphernalia found. If, however, there is a dispute about the level of dealing and no conviction on a count which reflects dealing over period of time, then the sentencing judge must exercise care - see for example Canavan (1998) 1 CrAppR (S) 243, Thompson and Smith (1997) 1 Cr.App.R (S) 289 and Johnson (1984) 6 Cr.App.R (S) 227.

To assist in deciding the correct sentence for offences of possession with intent to supply or of supply, it is sometimes helpful to look at the appropriate sentence for importation. Where the weight of the drugs at 100 per cent purity is of the order of 500 grammes or more, sentences following a trial of 10 years and upwards are appropriate. If five kilogrammes or more are involved then sentences of 14 years and upwards are appropriate - see Aroyewumi and others (1995) 16 Cr.App.R (S) 211 at 216.

What then is the appropriate sentence following a trial for a typical low-level retailer of heroin or other class A drug, with no relevant previous convictions, selling to other addicts in order to be able to buy drugs for his own consumption and to earn enough to live very modestly? It seems to us that he may expect about six years' imprisonment. Selling to the vulnerable or young will increase that sentence - see Barnsby (1998) 2 Cr.App.R (S) 222 and Doyle (1988) 10 Cr.App.R (S) 5, as also introducing persons to heroin - see Satvir Singh. A plea at the earliest opportunity will reduce that sentence by the appropriate margin of about one quarter to a third. Personal circumstances may reduce it further. If the defendant is able to show that he is no longer addicted to class A drugs then a reduction may also be appropriate. Applying those principles to this case, in our judgment Djahit fits into the category of the typical low-level retailer to which we have made reference. He pleaded guilty and is to be given full credit for that. In addition, as the pre-sentence report shows, he appears to have solved his problem with heroin using the assistance of his family which has supported him in that regard and of a drug dependency unit. Courts will have to look at evidence of that kind with care but we accept what the probation officer says.

In those circumstances the proper sentence in this case for the offence of possessing heroin with intent to supply was one of four years' imprisonment. For the offence of possession of a class B drug we take the view that 12 months' imprisonment was manifestly excessive and we shall replace that sentence with one of two weeks' imprisonment, both sentences to be served concurrently, making a total of four years.

In the case of Marot:

JUDGE DYER: On 17th June 1998 at Shrewsbury Magistrates' Court the applicant pleaded guilty and was committed to the Crown Court for sentence and on 13th July at the Crown Court he pleaded guilty to an indictment which contained two counts: possession of a class A drug (heroin) with intent to supply, for which he received a sentence of seven years' imprisonment; and for supplying a class A drug (heroin) he was sentenced to seven years' imprisonment concurrent. For possession of a class A drug (heroin) there was no separate penalty. Seven years was the total sentence. A confiscation order in the sum of £110 - which was all he was found with - was imposed with 14 days' imprisonment consecutive in default of payment of that sum. An order was made for destruction of the drugs.

The present proceedings are a renewal of his application for leave to appeal against sentence and legal aid after refusal by the learned single judge. Having heard counsel we have granted his application to appeal against sentence and his counsel has told us that he has authority for us to consider and deal with his appeal today which is what we will do. We should mention that he had a co-accused Keli Jane Butler who pleaded guilty only to possession of a class A drug (heroin) and who was placed upon probation for three years.

Between 21st January and 26th February 1998 police officers mounted a covert surveillance operation at the home that the applicant shared with Miss Butler in Shrewsbury. They were both registered heroin addicts. During the course of that observation 156 calls at the premises were observed, many of whom stayed for a very short while only, frequently conducting a transaction on the doorstep with the applicant or his girlfriend, or stepping inside the house for a few minutes.

On 26th February 1998 police officers arrested the applicant as he was walking along the street and subsequently executed a search warrant. At his house a number of plastic bags, pieces of foil which contained traces of heroin and 289 milligrammes of heroin and £110 in cash were recovered.

When he was interviewed the applicant admitted that he was a heroin addict but denied dealing in heroin. However, he pleaded guilty. The learned sentencing judge gave credit for his guilty pleas and treated him as a man of good character so far as the drugs were concerned and the basis of his plea that he was only supplying drugs to known addicts was accepted and he would be sentenced on that basis. The learned sentencing judge said that heroin was lethal and probably the most destructive of all drugs and it could not be said too often that those who dealt with heroin would receive substantial custodial sentences.

What of this appellant himself? He is 27. He was treated for these purposes as of good character. He pleaded guilty. There was a pre-sentence report dated 17th July which recognised the inevitability of a custodial sentence. There was also a psychiatrist report prepared by Dr Karen Fletcher, a consultant psychiatrist, who said this in his summary and recommendations:

"Guy Marot is a 27 year old single male with a history of behavioural difficulties since childhood and a history of substance misuse commencing at the age of 13 years. He is currently moderately to severely dependent on heroin, and treatment attempts in the past have failed because of Mr Marot's poor motivation to become drug-free in the light of the enjoyment he gets from taking heroin."

However since the time of the writing of this report, when he was in prison at Shrewsbury, the psychiatrist was told:

"Mr Marot says that he has now completed five weeks without any opiates at all. He is not interested in receiving a prescription for methadone, but wishes to be admitted to a Residential Rehabilitation Unit where he can learn to live a drug-free lifestyle in a protected environment. To this end he has received a Community Care Assessment from the Shropshire Community Substance Misuse Team."

The writer continues:

"Mr Marot did not wish to remain in the Shrewsbury area taking Naltrexone, a powerful opiate blocker. This possibly reflects his current desire to move away from the drug scene and attempt to become drug-free. This is also coinciding with a renewed interest in tackling his life difficulties rather than avoiding them through drug-induced intoxication."

We have quoted that report because it does show that there is some hope for the future.

The sentence which was imposed upon him was a severe sentence and in some ways can be compared with a sentence for importation. In a paragraph to which my Lord has referred, only in the last few minutes, he said that to assist in deciding the correct sentence it is helpful to look at the appropriate sentence for importation, where the weight of the drugs at 100 per cent purity is of the order of 500 grammes or more, following a trial, sentences of 10 years upwards are appropriate. On a plea of guilty, at an early stage, as has happened in this case, therefore the sentence would have been one of about seven years for importation of 500 grammes or upwards.

We have duly considered, as we have said, the authorities in this case and my Lord has reviewed those authorities within the last few moments. But in addition to considering the authorities which would reduce the sentence it seems to us to somewhere in the region of four-and-a-half years, there may be compelling mitigation. In this case we have referred to some of the provisions of the psychiatric report and this young man has a very good and very loyal family. He has wasted his parents substance to some considerable extent, wasting it on drugs. They have remained loyal to him and we hope he will be to them. His parents have been here all day today and he is very fortunate in having them and the support that he is now getting. With that, perhaps, he will be able to break this habit because the will can only come from him.

Turning to the question of the length of the sentence, from the authorities and from what we have already said it seems to us that the sentence was excessive, and therefore having granted leave to appeal and turning to sentence, the appropriate sentence for possession of heroin with intent to supply is four years; for supplying a class A drug (heroin) four years' imprisonment concurrent; and for possession of heroin again there will be no separate penalty. To that extent this appeal is allowed.