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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General's Reference No. 20 of 2005 [2005] EWCA Crim 1861 (29 June 2005)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/1861.html
Cite as: [2005] EWCA Crim 1861
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CRIMINAL DIVISION
The Strand London WC2 |
||
B e f o r e :
MR JUSTICE BENNETT
HIS HONOUR JUDGE RICHARD BROWN DL
(Sitting as a Judge of the Court of Appeal Criminal Division)
____________________
| ATTORNEY GENERAL'S REFERENCE No. 20 of 2005 | ||
| UNDER SECTION 36 OF | ||
| THE CRIMINAL JUSTICE ACT 1988 | ||
| R E G I N A | ||
| - v - | ||
| MICHAEL ANTHONY MAY |
____________________
Smith Bernal, 190 Fleet Street, London EC4A
Telephone No: 020-7421 4040
(Official Shorthand Writers to the Court)
MR R CHISTIE appeared on behalf of THE OFFENDER
____________________
Crown Copyright ©
- This is an application by the Attorney General for leave to refer to this court for review a sentence imposed on the offender on 15 February 2005 for seven offences of supplying a controlled drug of Class A. The sentence that was imposed was one of two years' community rehabilitation and 100 hours' community punishment. It is no surprise that the Attorney General has sought leave to refer the sentence. The general principle is clear. Those who deal in drugs will for the purpose of deterring others and for the protection of the public face significant custodial sentences. Accordingly, the question is whether there was any material in this case which could justify the wholly exceptional course adopted by His Honour Judge Simpson, who is an experienced judge who knows well the area in which he sits.
- The offender is 18 years of age. At the time that the offences were committed he had left home as a result of difficulties with his family and was sleeping with friends. He undoubtedly became involved in the drug scene, first, by becoming a drug user. However, it would appear as though his drug use had only persisted for a matter of months or so before the offences with which the court is concerned. Those offences took place between 6 and 22 September 2004, when the seven incidents upon which the prosecution relied took place. Those were seven occasions upon which the offender provided undercover police officers with crack cocaine. As far as the first incident was concerned, it is plain that the offender was merely the person who was provided with the cocaine in order to supply the officers. The arrangement had been made between the officers and another person. Indeed four of the other occasions took place in a similar manner; but there were two occasions upon which the initial contact was with the offender himself. The amount of cocaine on five occasions was in the region of 200-250 milligrammes. That is an amount for which £20 was the appropriate price. However, on two occasions a double quantity was supplied for which the price was £40.
- The offender was arrested. He was remanded in custody for three months before sentence was passed. He did not enter a plea of guilty at the first opportunity, but did so after he had seen video-recordings which related to the transactions in question. When he came before the court for sentence he had the benefit of a pre- sentence report which set out his background. It made the point that he was a young man who had no previous convictions. It expressed the view that he was somewhat naive about drugs and the seriousness both of drug use and drug supply. The report expressed the view that the offender had learned his lesson from the arrest and remand in custody. The probation officer was optimistic that, provided the offender avoided the friends or acquaintances in whose company he had become involved in the drug scene, he would not re-offend. The probation officer expressed the clear view that the offender had both sincerely regretted his involvement in the offences and had expressed relief that he had been arrested before he had become so involved in the drug scene that he could see no escape for himself. The report came to the conclusion that, because of the fact that he was not in any true sense a drug addict, a drug treatment and testing order was not appropriate. It recommended that a community penalty should be imposed on the basis that this was a young man whose offending, if caught at this stage and appropriately dealt with, could be brought to an end. It was in those circumstances that the judge sentenced him as he did.
- We have the benefit of a letter from Judge Simpson setting out the particular reasons for his having taken the course that he did: first, the age of the defendant; second, the absence of a criminal record; third, the matters set out in the pre-sentence report; and fourth, he referred to the decision of this court in R v Alfonso. He went on to say that he considered that it was one of those cases where "'a brand could be plucked from the burning', whereas a custodial sentence certainly would not produce such a result."
- Insofar as the judge referred to Alfonso, we consider that he could not have intended to indicate that he considered that this case fell within the Alfonso category. This was not a case of a long-term, homeless, hopeless, out-of-work drug addict dealing in drugs to feed his habit. It is plain that this young man, as we have already indicated, was not a drug addict at the stage that these offences were committed. He was a drug user who allowed himself to become involved in supply, not just to feed his habit but also to be able to sell surplus drugs to earn money. He was obviously close to the source of supply. In those circumstances if the case fell to be dealt with by way of a custodial sentence, it would clearly not have been the sort of case for the shorter sentence which this court indicated could be appropriate in such cases.
- However, the fact is that this court has repeatedly made it plain that guidelines, even where clear principles such as that to which we referred at the beginning of this judgment, are indicated and indeed reiterated are not intended to deprive the sentencing judge of the opportunity (if he or she considers it appropriate) to take an exceptional course in a particular case. There was, in our judgment, sufficient in the material before this judge to permit him so to do. He made it plain that it was an exceptional course. He made it plain that it was an exceptional course in particular because there were others who were sentenced at the same time, and all were sentenced to terms of custody. He also made it plain to the offender that were he to fail to take the chance which the judge was offering him, the consequence would be inevitable; and that he should be under no illusion but that the court took a chance with him which, if he was not prepared to accept it, would inevitably result in his having to face a significant period in custody.
- For the reasons that we have given we do not consider that this was a case where a sentence has been imposed with which this court should interfere. We give leave to refer because clearly this was a lenient sentence, but we do not interfere with it. Accordingly the sentence stands.
Wednesday, 29 June 2005
LORD JUSTICE LATHAM: