England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2000] EWCA Crim 52

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Case no.99/1424/X2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL - CRIMINAL DIVISION
ON APPEAL FROM HARROW CROWN COURT

Royal Courts of Justice,
Strand, London, WC2A 2LL
Tuesday 25th July 2000

Before:
The Lord Chief Justice of England and Wales
(The Lord Woolf of Barnes)
Mr Justice Rougier
and
Mr Justice Bell
========================
Regina
-v-
Behrooz Mashaollahi
========================

(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AD
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

Mr Graham Cooke appeared on behalf of the Appellant
Mr Philip St.John-Stevens appeared on behalf of The Crown
Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE ROUGIER:

On the 12th May 1998 at the Harrow Crown Court the appellant pleaded guilty to possessing a class A drug, namely opium, with intent to supply and was sentenced to 14 years imprisonment. The amount involved was 28 kilos of raw opium in resinous form and just 2 kilos in sticks, probably representing some degree of adulteration. The grounds of his application for leave to appeal against that sentence included the submission that, since the street value of opium was appreciably less than that of other class A drugs, notably heroin and cocaine, a different and less severe attitude to sentencing should be adopted.

The Learned Single Judge refused the application, but on a renewal, the Full Court, in view of the comparatively infrequent incidence of offences concerning opium, decided that it would benefit from guidance and so referred the matter to the Sentencing Appeal Panel pursuant to section 81(2) of the Crime and Disorder Act of 1998, such referral being on the 21st December 1999.

The panel has now delivered its Advice and the Court wishes to acknowledge its indebtedness.

Having considered the report and having heard further helpful submissions from Counsel for the appellant and for the prosecution, on the 13th July last this Court allowed the appeal, quashed the sentence of 14 years and substituted a sentence of 9 years imprisonment. A concurrent sentence of 12 months imprisonment for the possession of methadone did not form the subject of any appeal, and was left unaltered.

We now give our reasons:-

As the result of a wide range of soundings, the Panel were able to provide the following information:- It seems that opium is most often imported from traditional opium-growing countries in small quantities for personal use. It is not commonly traded on the street and there is no evidence that its use in this country is widespread or that it is likely to increase significantly. Nevertheless, the Panel's advice was based on the current classification of opium as a class A drug and on the premise that for the purposes of sentencing, it was to be regarded as being every bit as harmful as other class A drugs - this in line with current authority. The street value of the consignment lay somewhere between £295,000 and £342,000 and from these calculations it appeared that, weight for weight, where street value is concerned, heroin is considered to be approximately eight times more valuable than opium. On this basis, a consignment of 40 kilos of opium at 100% purity would be equivalent in value to five kilos of heroin at 100% purity, importation of which, under the current sentencing guidelines, attracts a sentence of 14 years and upwards on a contested case.

The Panel acknowledged what they described as a remote possibility that opium might be brought into this country for the purpose of converting it into morphine or heroin but that such a procedure was highly unlikely since the production of morphine or heroin would be a process not only complex but illogical, since it would make little sense to import bulky material in order to refine it to produce a smaller amount of another drug which is relatively freely available.

Based upon these findings, the majority view of the respondents to the Panel's enquiry was that the principal factor in determining sentence should be weight, but that the equivalent in street value of heroin or cocaine should also be used as a sort of cross-check. Nevertheless the Panel declared that they believed that monetary value, even as a comparator between different types of drugs rather than as the primary factor for determining sentence levels, needs to be treated with considerable caution.

The Panel summed up their recommendations as follows:-

Paragraph 14. "Although we understand that it is unlikely, there is at least the remote possibility that opium might be brought into this country for the purpose of converting it into morphine or heroin. In a case where such an intention was established, it would be appropriate to base the sentence on the amount of heroin or morphine that could be produced from the opium seized. We understand that the ratio to apply in these circumstances would be 10:1 i.e. ten kilos of opium would be needed to produce one kilo of morphine or heroin assuming average levels of purity."

Paragraph 15. "We have concluded that unless there is clear evidence in a particular case that a consignment of opium is intended for conversion into morphine or heroin, a sentencing guideline for the importation or possession of opium" (we would interpolate here with intent to supply) "should be based on weight, cross-checked with street value to ensure that at least an approximate equivalence with heroin and cocaine is maintained. For importation of opium, the appropriate guidelines would be:-

14 years and upwards for a consignment of 40 kilos or more of opium:-

10 years and upwards for a consignment of four kilos or more of opium.

Paragraph 16. In line with the sentencing guidelines for other class A drugs an appropriate adjustment should be made to the sentence to take account of relative drug purity.

We consider that the recommendations of the Panel should basically be adopted, but would add a few supplementary comments for the guidance of sentencers in the future.

First is the question of purity, mentioned in paragraph 16 of the recommendations above quoted. The point was taken before us that, in suggesting the tariffs mentioned, the Panel must be assumed to have made their recommendations on the basis of consignments of 100% purity. It was submitted that, in line with cases such as Aranguren [1999] C.R.App.R.347, the sentence should be tempered to account for less than 100% purity.

Very recently it so happens that another division of this Court, in the case of Morris, heard on 14th July last, stated that in relation to large consignments of heroin or cocaine an analysis of the amount of the active ingredient of the drug was essential for sentencing purposes, so that the weight of the drug at 100% purity rather than the street value of any particular transaction should be determinative. This was clearly in accordance with the decision in Aranguren and the subsequent case of Warren and Beeley [1996] 1 Cr.App.R.120, which concerned ecstasy. The underlying reason is not difficult to see; in practice, it is virtually impossible to buy heroin or cocaine of 100% purity on the street. They are invariably cut or otherwise adulterated by the admixture of some harmless substance. The extent of criminality depends on the extent of the drug itself and not of the harmless substance.

But with opium the position is different. It is a crude mixture of many different chemicals contained in the juice of the seed capsule of the opium poppy, papaver somniferum. Incisions are made in the capsule from which the latex oozes out and when collected and allowed to dry in the air forms a dark sticky mass known as raw opium. For non-medical purposes, such as either smoking or eating the substance, the raw opium is boiled in water, strained to remove insoluble materials and then evaporated to form a sticky paste known as prepared opium. The significant feature is that it is still the natural derivative of the plant, and, save exceptionally, it is not adulterated by the addition of any further substances. We consider therefore that, in line with the case of Warren and Beeley in relation to ecstasy and Hurley [1998] 1 C.R.App.R.(S.) 299, BAILII: [1997] EWHC Admin 715 in relation to L.S.D. the Court should proceed on the assumption that any given consignment of opium is unadulterated and of 100% purity. Should the defence wish, by way of mitigation, to persuade a Judge that the active ingredient was of a lesser percentage it is open to them to call the appropriate evidence.

Second, it was pointed out to us that the morphine constituent of opium tended to show a considerable variation. However, since we are dealing with the composite product of the plant, we think that any enquiry as to the percentage of one particular constituent, even though it is by itself a class A drug, would introduce a needless complication to the sentencing process.

The third point concerns the suggested cross-check by reference to the corresponding street value of heroin or cocaine. It will be seen that, upon analysis, though favouring weight as the predominant factor to be taken into account when sentencing, the actual tariff which the Panel arrived at was a reflection of the corresponding street value of the two other class A drugs. It was submitted to us that, even as a cross-check, this might produce potentially unjust or varying results if, for example, the price of heroin fell, or was appreciably lower in one particular area as opposed to another, depending upon the intensity with which the drug was marketed.

But we remind ourselves that the Panel declared that the equivalent heroin or cocaine value formula was one to be treated with considerable reserve. And by this we conclude that, even as a cross-check, it was not to be regarded as appropriate or mandatory in every case. If the sentencing judge is presented with evidence which persuades him that a calculation based on the equivalent street value of heroin or cocaine would produce an unacceptably high sentence for offences concerning opium, he would be entitled to disregard any cross-check based on such a calculation. Further, if at some later date it is demonstrated that, owing to a general fall in the street value of heroin or cocaine the comparative calculation would produce a similarly unjust result, then these guidelines will have to be revised.

In summary, therefore, we consider that, unless there is acceptable evidence to the contrary, the suggestions of the Panel should be adopted and that, on a contested case, the appropriate sentence for a consignment of 40 kilos or more of opium should be 14 years and upwards, and for a consignment of four kilos or more the sentence should be ten years and upwards. To this rule of thumb we would make one exception and that is in cases where it is established that the importation of opium was carried out for the purpose of conversion into morphine or heroin we consider that the appropriate sentence should be based on the equivalent value of those drugs.

Applying these guidelines to the facts of the instant appeal, it will be seen that the total importation fell into the ten years and upwards bracket. Additionally, however, regard must be had to the mitigating factors, namely first and foremost the plea of guilty, second the hitherto good character of the appellant, and finally, of somewhat less impact, the fact that he was acting in the capacity of warehouseman. Accordingly, as already stated, we reduce the sentence to one of nine years imprisonment.