England and Wales Court of Appeal (Criminal Division) Decisions

Royal Courts of Justice

The Strand

London WC2

Tuesday 13th January 1998

B E F O R E :

LORD JUSTICE BUXTON

MR JUSTICE MAURICE KAY

and

MR JUSTICE MOSES

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R E G I N A

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CHRISTOPHER NUTTALL and GARY PERRY

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Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Reporting Limited

180 Fleet Street, London EC4A 2HD

Tel No: 0171 421 4040 Fax No: 0171 831 8838

(Official Shorthand Writers to the Court)

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MR R GRAY appeared on behalf of the Appellants

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JUDGMENT

( As Approved by the Court )

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Crown Copyright

JUDGMENT

MR JUSTICE MOSES: In March 1997 at the Crown Court at Carlisle the appellant Nuttall pleaded guilty to offences involving Ecstasy tablets and in May 1997, at a somewhat later stage, the appellant Perry also pleaded guilty. Nuttall was sentenced to a total of six years' imprisonment made up as follows: five years' imprisonment for possession of the Ecstasy being a class A drug with intent to supply, there was another sentence of 12 months' imprisonment concurrent in respect of a small quantity of Ecstasy; and then 12 months' imprisonment to run consecutively in respect of possession of a prohibited weapon, which was a stun gun. Perry received similar sentences.

The two appellants had been involved as couriers in respect of drugs, some money and a stun gun. As counsel for the appellant summarises it, Nuttall travelled in December 1996 from Liverpool to Scotland to collect a package containing cash in the sum of just over £4,000 and drugs. He was to return with the package containing Ecstasy tablets and a stun gun. There was some 2035 Ecstasy tablets. The co-appellant Perry travelled initially to keep company with Nuttall but he became a willing participant and travelled back with him, where they were stopped and the car was searched by police officers at a service station in Cumbria. The Ecstasy tablets were found behind the central fascia of the vehicle and the stun gun, which was subsequently found to be inoperable, also found behind a similar panel.

The appellant Nuttall is now 30. The appellant Perry is now 35. The learned judge sentenced them on an agreed basis which it is important to emphasize. The agreed basis as recalled by the sentencing judge was that this was a one-off offence and that these appellants were acting as couriers only. It was further agreed that Perry had acted in a naive way having been asked to accompany Nuttall up to Scotland.

The appellants' records were very minor, minor offences happening a long time ago, and are, in our judgment, irrelevant to the appropriate way to sentence these two appellants for being involved in a substantial enterprise of acting as couriers in respect of those drugs, the money and the stun gun.

The real point in this appeal is, firstly, whether it was appropriate to pass a consecutive sentence in respect of the stun gun, being a prohibited weapon, and secondly, whether the sentence was appropriate having regard to the totality of the six years. In our judgment it was wholly appropriate to pass a consecutive sentence in respect of the stun gun. True it is that these two couriers were not planning to use that stun gun for the purposes of their enterprise, but it is one thing, in our judgment, to agree to participate in acting as courier in respect of class A drugs and an aggravating and more serious feature should those who choose to act as couriers also agree to carry what the sentencing judge described as a fearsome weapon. For all anyone knows these couriers were ignorant as to whether the stun gun would work or not - no one suggests they tried to work it - so for all they knew that stun gun could have been used. In our judgment the judge was perfectly correct in imposing a consecutive sentence. Nevertheless, we have to look at the totality. Having regard to the agreed facts and the fact that it was accepted by the judge that this was a one-off offence in which these young men unfortunately agreed to act as couriers, we do think that the total of six years' imprisonment was too long. We therefore propose to substitute the total sentence of six years by one of five years. Despite our comments as a matter of general principle in relation to the appropriateness of the consecutive sentence for being in possession of a prohibited weapon, we propose to reach the correct total by ordering that the sentence of imprisonment of one year consecutive in respect of the possession of the prohibited weapon should run concurrently making a total sentence in respect of both these appellants of five years in all. To that limited extent their appeals are allowed.