England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		7th November 2000

 

1. LORD JUSTICE KENNEDY: This case raises the question of what should be the proper level of sentencing where the offender is shown to be a retailer of Class A drugs at street level. The matter was considered quite recently by this Court in Djahit [1999] 2 Cr App R(S) 142, BAILII: [1998] EWCA Crim 3533 In that case Hooper J, giving the judgment of the court, said at page 145:

   "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, BAILII: [1998] EWCA Crim 69 and Doyle (1988) 10 Cr App R(S) 5, as also introducing persons to heroin - see Satvir Singh (1988) 10 Cr App R(S) 402. 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."

2. In the present case leave to appeal was refused by the Single Judge. When the application for leave was renewed to the Full Court on 27th July 2000 leave was granted, Holman J saying:

   "It does seem to us that if the case of Djahit and what was said by this court on that occasion is the appropriate guide to the level of sentence in this type of case following pleas of guilty, then it may be that the sentence of six years imposed in the case of the present applicant was longer than it should have been. At the same time, however, we observe that it also seems to us that it may be that what was said in the case of Djahit does not lie entirely comfortably alongside what has been said in a number of other cases which tend to indicate a longer length of imprisonment for supply even after a plea of guilty and even in the sort of circumstances of this case and the case of Djahit. Therefore it may be that the present case may present an appropriate opportunity for the full court to consider whether it wishes to reaffirm the approach in the case of Djahit."

3. Thus the matters come before us.

4. In addition to submissions made by Mr Cousins on behalf of the appellant, we have had the assistance of submissions Dr David Thomas QC as amicus curiae.

5. We start by saying that we are not proposing to frame guidelines within the scope of section 80(2) of the Crime and Disorder Act 1998. Were we proposing to do so, we would seek the assistance of the Sentencing Advisory Panel, as required by section 81(2) of that Act. That, in our judgment, is only necessary where this Court proposes to give guidance across a wide field as it did in the case of R v Aramah (1982) 4 Cr App R(S) 407.

6. The next matter to be emphasised, as was recognised by the Court in Djahit, is the importance of only sentencing for the criminality proved or admitted by means of, in most cases, a request that the offence be taken into consideration: see Canavan [1998] 1 Cr App R(S) 243, BAILII: [1997] EWCA Crim 1773, and, in the context of drug supply, Brown [2000] 1 Cr App R(S) 300. This established precept of English law is now reinforced by Article 6 the European Convention of Human Rights.

7. If the prosecution can prove that a defendant has been acting as a supplier over a substantial period of time, it can put the court in a position to sentence properly in one of three ways: first, by charging a number of offences of supplying or possession of drugs at different dates; or, secondly, by charging the defendant with conspiracy to supply over a prescribed period; or, thirdly, by charging him with being concerned in the supply of a controlled drug over a specified period, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.

8. What, however, is important is that, if the indictment is not drawn as we have suggested and the defendant does not ask for offences to be taken into consideration, judges when sentencing should refrain from drawing inferences as to extent of the defendant's criminal activity, even if such inferences are inescapable having regard, for example, to admissions made or equipment found. In other words, a defendant charged with one offence of supply cannot receive a more substantial sentence because it is clear to the court that he has been trading for 9 months: but the court is not require to blind itself to the obvious. If he claims that the occasion in question was an isolated transaction, that submission can be rejected. He can be given the appropriate sentence for that one offence without the credit he would receive if he really were an isolated offender.

9. Previous convictions or lack of response to previous sentences are relevant to the seriousness of the offence: see section 151(1) of the Crime (Sentences) Act 2000, which provides as follows:

   "In considering the seriousness of any offence, the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences."

10. Furthermore, section 110 of the same Act provides:

    "(1)This section applies

    (a) where a person is convicted of a Class A drug trafficking offence committed after 30th September 1997;

    (b) at the time when that offence was committed, he was 18 or over and had been convicted in any part of the United Kingdom of two other Class A drug trafficking offences; and

    (c) one of those other offences was committed after he had been convicted of the other.

    (2) The court shall impose an appropriate custodial sentence for a term of at least seven years except where the court is of the opinion that there are particular circumstances which---

    (a) relate to any of the offences or to the offender; and

    (b) would make it unjust to do so in all the circumstances."

11. That brings us back to the question of what is the existing tariff for offences of this kind. It has been said that the decision in Djahit does not lie entirely comfortably alongside what has been said in number of other cases which suggest a longer sentence. With the assistance of Dr Thomas, we have looked at a wide range of reported cases dealing with all Class A drugs and the sentences imposed over a period extending from 1988 to date. All indicate a sentencing bracket, on the hypothesis put forward by Hooper J, of between 5 and 7 years: in other words, as the judge said, an offender may expect about 6 years' imprisonment, which can be increased or mitigated in the way that he outlined.

12. Undoubtedly this Court has power to review an existing tariff. It did so in Avis [1998] 2 Cr App R(S) 197, BAILII: [1997] EWCA Crim 3355, in relation to firearms because of a change in legislation and in the Attorney-General's Reference No 33 of 1996 (Latham) [1997] 2 Cr App R(S) 10; BAILII: [1996] EWCA Crim 1308, in relation to carrying knives as weapons and then using them to inflict fatal injuries. That was in response to public concern about that relevant type of criminal activity.

13. If the tariff is revised that will not, on an Attorney-General's Reference where there has been a plea of guilty, result in any increase in the sentence: see Latham. However, we accept the submission of Dr Thomas that certainly in relation to statutory offences, no assistance can be gained from Article 7(1) of the European Convention of Human Rights that no heavier penalty can be imposed than the one that was applicable at the time the criminal offence was committed. That must be taken to refer to the statutory maximum sentence, which in the present case is life imprisonment.

14. We have anxiously considered whether at this stage it is necessary to review the existing tariff, but we are not persuaded it is necessary to take that step. As Hooper J pointed out in Djahit, the present level of sentencing does seem to bear a sensible relationship to the sentences imposed, for example, for importing quantities of drugs. We pass then to the facts of this case.

15. On 16th July 1998, at the Blackpool Magistrates' Court, this appellant pleaded guilty to one offence of possessing heroin and was given a conditional discharge for 12 months. On 25th August 1998 a surveillance operation was in progress conducted by police officers in Blackpool. Two undercover officers had contacted the address of the appellant and Sarah Tomlinson by telephone. As a result of that telephone call, the officers met another man named Blackburn and were supplied with a wrap of heroin. That episode did not form the basis of any count in the indictment.

16. On the following day, 26th August 1998, the officers again telephoned the address of the appellant and Tomlinson and they were invited to go round to that address. When they arrived, the appellant supplied them with 342 milligrams of heroin at 36% purity. The value of the heroin was £30, but the officers paid £15 in cash for it and gave the appellant a video recorder in part exchange. That formed the subject matter of count 3 in the indictment - an offence of supply, for which the sentence imposed was one of 6 years' imprisonment.

17. On the following day, 27th August 1998, the same two officers telephoned and spoke to Sarah Tomlinson. She told them that the appellant was able to supply them with heroin. The officers were invited to go to the address. The appellant supplied them with 273 milligrams of heroin at 35% purity. The value of the drug was £25, but the officers paid £15 in cash and gave the appellant two T-shirts. That was the subject matter of count 4 in the indictment - an offence of supply, for which again the sentence was one of 6 years' imprisonment.

18. On 28 August 1998 the officers telephoned and spoke again to Blackburn. They asked for heroin and cocaine and were told that Sarah Tomlinson would get the drugs. They telephoned again later that day and were told by Tomlinson that they should come to the house. When the officers arrived, Tomlinson and Blackburn took them to a bedroom, where the appellant was in bed. They discussed the supply of cocaine. The appellant offered to obtain cocaine for them. That offer constituted the subject of count 6 in the indictment - an offer to supply, for which again the sentence again was 6 years' imprisonment. The officers then asked for £20 wraps of heroin. The appellant supplied them with two such wraps. The first contained 204 milligrams of heroin at 23% purity and the second 207 milligrams heroin at 28%. That supply constituted the subject matter of count 5 in the indictment, for which the sentence again was one of 6 years' imprisonment, all sentences being ordered to be served concurrently.

19. On 22nd October 1998 the police operation was brought to its conclusion. The officers then executed a warrant issued under the Misuse of Drugs Act 1971 and the appellant and Tomlinson were arrested.

20. The appellant, when interviewed, was entirely frank. He said that he had been dealing in heroin on and off for some period of 9 months. He said that he had purchased an eighth of an ounce for £125, which lasted one or two days. He then cut that amount into separate deals, which he sold for about £250. His co-accused Tomlinson later pleaded guilty on the basis that on two isolated occasions she was a messenger and had received drugs for her own use.

21. Blackburn was subsequently arrested on 14th December 1998. When interviewed, he made no comment.

22. Following the arrest, the appellant appeared before the Crown Court at Preston on 15th February 1999, where he pleaded guilty to the offences to which we have just referred. On 26th April 1999, before Judge Duckworth at that Crown Court, he was sentenced in the way that we have indicated and he received a concurrent sentence of three months' imprisonment for the breach of the conditional discharge to which we have again already referred.

23. In this Court Mr Cousins submits, first of all, having regard to what was said in Djahit, the starting point had the case been contested should have been in the region of 6 years. Of course that does not take account of the factor to which Hooper J expressly referred, namely that this man was not a man of previous good character. As the appellant pleaded guilty at the earliest opportunity, his sentence, Mr Cousins submits, should have been reduced by the amount indicated by Hooper J, thereby bringing it down to something of the order of four to four-and-a-half years.

24. Although he had three previous convictions, two offences of possession and one for the supply of drugs in the years up to 1998 and although he was actually subject to an order of conditional discharge in respect of the most recent of those offences at the time when he committed the offences charged in the indictment - indeed the order of conditional discharge was only about six weeks old at the time when the offences were committed, nevertheless - it is submitted to us that he is entitled to credit over and above that normally given to someone who has pleaded guilty because the sentences which were imposed on him on previous occasions were themselves modest and indicated that his criminality must have been at the lower end of the scale.

25. Furthermore, it is pointed out, as was accepted by everyone, he has been frank from the outset in relation to the matters which form the subject matter of the indictment. It is submitted in this Court, as it was in the court below, that he only sold to those whom he believed to be established users. But it is clear from the fact that he sold to undercover police officers that he was easily convinced that someone was an established user.

26. It is submitted that he only sold in amounts sufficient to cover his own habit; and there does seem to be support for that submission. He himself has always made the point that he has not engaged in other types of criminal activity in order to support his habit, such as burglary or theft.

27. Mr Cousins on his behalf submits that when he committed his earlier offences and indeed when he committed the offences charged in the indictment he was a drug addict. By time of the sentence, as a result of his own efforts, he was drug free. Of course he is someone who has attempted - and this to some extent is to his credit - on occasions in the past to rid himself of the habit. It is clear from the papers that he has made those attempts. They have not always been successful. He has fallen back into the bad habit again. No doubt that was something which had to be borne in mind by anyone sentencing him in this present case.

28. It is submitted that in this particular case there was also evidence of educational improvement, which either was not laid before the learned judge in the way that it should have been or was not properly developed. That was apparently set out in a report from the prison authorities to which we are not conscious of having seen and which is not now being laid before us because apparently it cannot be located.

29. We have, however, seen the typed letter which he addressed to sentencing judge, the letter written by his sister on 15th March and the letter written by the general practitioner liaison worker. All of those were clearly before the sentencing judge or they would not be in the papers which are before this Court.

30. On the other side of the balance, we have also seen a letter written by those who resided near to him at the time when he offending. It paints a horrific picture of what it is like to live near to someone who is engaged in drug traffick. That is something to which every sentencing court has to have regard every time when it is passing sentence. Even one offence of supply is likely to cause offence to those who live in that locality and, indeed, very often a good deal of fear too. That is something now today acknowledged by Mr Cousins on behalf of this appellant.

31. Although he was a drug supplier, it is submitted he was a drug supplier on a small scale, merely sufficient to satisfy his needs and those of his partner and co-defendant Sarah Tomlinson.

32. It is forcefully submitted today that she was not, as the judge suggested she may have been when sentencing her, under his influence. In fact she had, it appears, a longer history of drug abuse and a greater daily need, as is apparent from the papers in this case. All of that may be true, but on the other side of the equation if this man had not been supplying the drugs which apparently that young woman needed then she would not have been in such a good position to continue with her drug-taking habit.

33. Unlike many suppliers, it is said on his behalf that he made no real profit; and that does seem to be the case. His living conditions were squalid and he was deeply in debt. He had no fund of money, not even the £6,000 or so which was found on the offender in the case of Djahit.

34. Since he has been sentenced he has undoubtedly made efforts to continue to rehabilitate himself. He has completed as much as he can of a skills course, which will be completed hopefully when he is at liberty. He will then be able to act in a counselling capacity in a way which no doubt will be of considerable benefit to others. He has achieved enhanced status. All of that can be seen from the Governor five report before us, from a letter from his parents, from a memorandum dated 8th August 2000, from a letter from a part-time lecturer at the prison where he is at present serving his sentence and from the Prison chaplain's letter too.

35. The sentences imposed, it is submitted, were out of line with those imposed on others caught by the same police surveillance operation. We, unfortunately, have no sound basis on which to evaluate that submission. But even if there were anything in it, it does not seem to us to amount to a proper submission of disparity because there is no suggestion that there is any disparity to be discovered when looking at the sentence of this appellant and, for example, those imposed on Tomlinson and Blackburn.

36. Finally in this submission Mr Cousins submits, perhaps not overtly but as a background to very much of what he said, that this man was not represented as he might have been in the court below.

37. In our judgment there is no sound basis at this stage for that submission. The complaint was made by the appellant. In consequence there was a waiver of privilege in this case. The Registrar has received accounts from those who represented him when he appeared in the Crown Court. So far as counsel is concerned it is sufficient to look at what was said in the letter from instructing solicitor to counsel. It reads thus:

    "Mr Hayton [and he was counsel at the time], although not as experienced as Mr Bromley Davenport [who had originally been asked to act] or Mr Davies [who had at one time acted], is extremely able and is a member of the Bar who has been instructed by this practice on numerous occasions."

38. We have no reason to think that every point that could properly be made on behalf of this appellant was not made in the court below.

39. Be that as it may, we now have to consider what the sentence should have been and whether there is any good ground for interfering with the sentence imposed by the sentencing judge. As we have indicated, we are considerably assisted by what was said by this Court in Djahit. However, it does have to be recognised that there are aggravating features about this appellant's offending. It was not an isolated offence - there were four counts in this indictment. He had three previous convictions. He was at material time subject to an order of conditional discharge. He involved others. This was a team effort. On the other hand, there are matters of mitigation. He pleaded guilty at the first available opportunity and, so far as one can ascertain, has been entirely frank. And, as has been emphasised, he has made serious and continuing efforts to rehabilitate himself.

40. Taking all of those matters into account, we have come to the conclusion that the sentence of 6 years' imprisonment which was imposed upon him was, in total, somewhat too high. We propose to set aside the sentence of 6 years' imprisonment which was imposed in respect of the four counts in the indictment, to substitute for it a sentence of 5 years' imprisonment, concurrent on each count, and to continue the order that the sentence in respect of the conditional discharge of 3 months' imprisonment should be served concurrently with the sentences imposed in respect of the substantive counts in the indictment. That means that the sentence now becomes one of 5 years' imprisonment in all. To that extent, this appeal is allowed.