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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 >> Reardon, R. v [2005] EWCA Crim 2418 (23 September 2005)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2005/2418.html
Cite as: [2005] EWCA Crim 2418
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CRIMINAL DIVISION
Strand London, WC2 |
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B e f o r e :
MR JUSTICE DAVIS
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| R E G I N A | ||
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| DAVID REARDON |
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Smith Bernal Wordwave Limited
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- MR JUSTICE DAVIS: The appellant is now a man of 43 years of age. On 9 December 2004, in the Crown Court at Middlesex Guildhall, he pleaded guilty to four counts on an indictment: count one being a count of supplying a controlled drug of class C to another, which was cannabis; count 2 being supply of a controlled drug of class C, which was Diazepam; count 3 being the supply of a controlled drug of class C, which was Temazepam; and count 4 being supply of a controlled drug of class A, being cocaine.
- On 28 January 2005 he was sentenced to terms of one year imprisonment on counts 1, 2 and 3 to run concurrently, and consecutively he was sentenced to a term of three years' imprisonment on count 4. On the supply of cocaine count he was sentenced to a term of three years' imprisonment; the total sentence therefore being four years' imprisonment. In addition, the judge decided to make him subject to an anti-social behaviour order for a period of five years, to commence upon his release, preventing him from entering any public house, entering any shops or commercial premises, and preventing him from offering for sale or reward any good in a particular area of London, and he also was prohibited from causing, in the City of Westminster area, any behaviour likely to cause harassment, alarm or distress. Against that sentence, he now appeals by leave of the single judge.
- The facts shortly put are these. There was a long-term intelligence operation, which ran in the Church Street area of London NW8, the aim of which was for undercover police officers to be accepted within the local community and identify persons concerned in criminality. On the evening of 15 March 2004, two undercover officers, 'Vinnie' and 'Ian', attended the Traders Public House. The appellant entered the pub at around 9.10pm and a conversation began during which the appellant asked Ian if he wanted any 'rocky', that is to say cannabis. Ian said that he did and the appellant left the pub, returning a short while later and telling Ian to meet him in the lavatory. Vinnie accompanied them to the lavatory and the appellant showed them a plastic bottle which had his name printed on the label. The bottle contained several assorted pills and a lump of cannabis, which Ian bought for an agreed price of £15. The appellant then left the pub. The pill bottle and its contents were examined and found to contain 0.572 grams of cannabis resin, two tablets containing Diazepam and one tablet containing Temazepam, these being the matters constituting counts 1, 2 and 3.
- At around 7.50pm on 2 April 2004, Vinnie again made his way to the same public house and the appellant joined him at the bar. He told Vinnie that he had ordered half a gram of cocaine for himself. Apparently the position put forward was that that was going to cost the appellant £10. He only had £8 and therefore wanted to make up the remaining £2 in order to buy the cocaine for himself. Accordingly he asked Vinnie for £2, saying that he could get him 'a line' in return. Vinnie gave the appellant a £2 coin and the appellant left the pub to sit on a bench outside. Vinnie joined him, and a short while later a car drew up outside the pub. The appellant went to the front passenger side and an exchange took place. He retreated into the pub before returning to Vinnie and giving him a paper wrap containing white powder. The powder was examined and found to contain 45 milligrams of cocaine at a purity of 69 per cent. The appellant was arrested on 15 September 2004. In interview he made no comment to all material questions.
- It has to be said that the appellant has a very bad record indeed. His record starts with regard to a theft relating to a vehicle as long ago as 1981, and thereafter there are numerous convictions on his record, many for theft and the like, with some drug offences, but also including convictions for an offence of arson in 1988 and an offence of robbery in 1992. The background seems to be that most if not all of these offences were committed with a view either to funding the appellant's drug habit or as a consequence, as it were, of his drug habit.
- In the course of his sentencing remarks the judge said this, amongst other things:
- It seems to us that the judge may have been basing those comments on what he had been told in the course of mitigation, although it may be that the judge did perhaps overstate the position based on the material before him. The judge went on to note, understandably, the very bad record of this particular appellant, and also stated that he gave him full credit for his pleas of guilt and proceeded to impose the total sentence of four years' imprisonment, as we have mentioned, and also to make the anti-social behaviour order which we have mentioned.
- There possibly may have been some basis for challenging the making of the anti-social behaviour order, or at all events the length of it, but -- and this is to the credit of the appellant -- he has given instructions to Mr Weidmann that he does not seek to pursue any challenge to that part of the sentence. What Mr Weidmann says, however, is that the total sentence of four years' imprisonment was excessive in the circumstances, both individually with regard to each count and at all events as a matter of totality. As to counts 1, 2 and 3, he notes that these were not class A drugs, only small amounts were involved, and he submits that a sentence of one year on each count was well out of line with sentences ordinarily imposed in respect of such matters.
- As to count 4, he stresses that a very small quantity of cocaine was involved, and supply only took place to enable the appellant to get the £2 which he needed to fund his own immediate requirement for drugs. He also emphasises the plea of guilt, and draws attention to what seems to be the fact that, whilst in prison, the appellant is seeking to confront his long-standing drug habit.
- Taken overall, we think that there is force in these submissions. So far as the sentences with regard to counts 1, 2 and 3 are concerned, these do seem to be high, given the nature of the drugs involved and the circumstances of the supply, even allowing for the bad record and other factors relating to this appellant. We think there can be less obvious criticism of the individual sentence relating to the supply of cocaine. But we do also have to consider the question of totality set against the mitigation involved, both as to the personal situation of this particular appellant and as to the circumstances of the particular supply. We also bear in mind, although this is not a directly comparable case, the guidance given by the Court of Appeal in the case of Afonso.
- In the circumstances, we do think that this sentence was, as a matter of totality, too long. We quash it and substitute the following sentences. On counts 1, 2 and 3, the sentences will be six months' imprisonment to run concurrently. On count 4, the sentence will be one of two years' imprisonment to run consecutively. That will give rise to a total sentence of two and a half years' imprisonment, and the anti-social behaviour order will stand. To that extent and to that extent only, this appeal is allowed.
"I sentence you on the basis that you are what might be called a foot soldier, supplying retail on the street level in small quantities, but with some prolific activity."