England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2006] EWCA Crim 2757

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		Neutral Citation Number: [2006] EWCA Crim 2757
		No: 200604627 A1

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2

19th October 2006

B e f o r e :

LORD JUSTICE LATHAM
Vice President of the Court of Appeal Criminal Division
MR JUSTICE HENRIQUES
MRS JUSTICE GLOSTER DBE
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	REFERENCE BY THE ATTORNEY GENERAL UNDER
	S.36 CRIMINAL JUSTICE ACT 1988
	ATTORNEY-GENERAL's REFERENCE NO 097 OF 2006

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MR J LAIDLAW appeared on behalf of the ATTORNEY GENERAL
MR P ARNOLD appeared on behalf of the OFFENDER
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HTML VERSION OF JUDGMENT
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LORD JUSTICE LATHAM: This is an application by the Attorney General for leave to refer to this court under section 36 of the Criminal Justice Act 1988 a sentence imposed on this offender on the grounds that it is unduly lenient. The sentence was one of 2 years' imprisonment imposed concurrently on the offender in respect of two offences of possessing Class A drugs with intent to supply. The drugs involved were 1.3 grams of crack cocaine and a further quantity of 1.5 grams.

The basis of plea which was tendered in circumstances to which we will return was that the drugs were not in his physical possession, but he accepted that he had involved himself in their possession by indicating by means of text messages that those two packages of drugs were available for sale. The drugs had in fact been found by the police on 13th May 2005 when they searched a flat in Pershore where the offender's co-defendant, Miss Gillet, lived. She had a bag in which were found the two quantities of cocaine to which we have referred. She was arrested and in her interview made no comment.

The offender was subsequently arrested, interviewed and denied any knowledge of the drugs. His mobile phone was taken; and £1,815 cash was found. A list was found in his wallet which contained a number of names which the police claim was a dealing list. His DNA was found on both the wraps of drugs.

Ultimately, the case was listed for trial on 12th June 2006 before Mr Recorder Evans. The charges then were different and more extensive. But the prosecution indicated that they were prepared to amend the indictment to add the two counts to which ultimately the offender pleaded guilty on the basis of plea that he had put forward. Counsel for him indicated that he would ask the judge for what is now known as a Goodyear direction, were his client to plead guilty to the indictment as so amended. The Recorder, having heard the facts and the offender's previous history, which included a conviction in 1995 of possession with intent to supply heroin for which he received 5 years' imprisonment, indicated that if the offender was convicted after trial, he would sentence him to 3 and a half years' imprisonment.

In the light of that indication, the offender intimated his preparedness to plead guilty. The prosecution then made the application for the amendment of the indictment. It was amended; and the offender then pleaded guilty. Sentence was adjourned and on 15th August 2006 the offender, together with his co-defendant, came back before the Recorder when the offender was sentenced, as we have indicated, to 2 years' imprisonment on each of those counts currently.

On behalf of the Attorney General, it is submitted that the indication given by the Recorder as to sentence was inappropriate in two respects. Firstly, he submits that the Recorder did not, as Goodyear indicates he should, have given consideration to what the consequences of the plea of guilty would be, as opposed to an indication as to the sentence were there to be a plea of not guilty. Secondly, and more fundamentally, he submits that the indication was too low. He submits that the Recorder should have considered this to be a case which was on a par with the case of Daljit, to which we have been referred, and that accordingly the minimum sentence, if he was giving an indication in the form that he did, should have been one of 6 years' imprisonment. He submits that accordingly, whatever mitigation may have been available to the offender, the ultimate sentence here was plainly unduly lenient and that accordingly it is a sentence with which we should intervene. He submits that the fact that the offender pleaded guilty after the indication is only one factor that we should take into consideration, and certainly is not sufficient to justify the conclusion that this sentence can properly stand.

In our view they overstated the case. First of all, the offender was in possession of, on his plea, a relatively small quantity of drugs. Daljit was accordingly not a direct comparator. On the other hand, this was the second occasion upon which he had been convicted of possession with intent to supply. In those circumstances, we would have expected the judge, if he felt it appropriate to give an indication as he did in the way that he did, to have indicated to the offender that he faced the risk of a sentence in the region of 5 years' imprisonment. He pleaded guilty, albeit at the last possible opportunity. He was therefore entitled to credit for that plea of guilty.

There was other significant mitigation which this offender was entitled to pray in aid at the time which would have justified a further significant reduction in the sentence on its own. This complicated the case; and indeed makes it a problematic case for a reference by the Attorney General.

We have to consider the matter not only in the light of those matters but also bearing in mind the fact that the offender pleaded guilty as a result of an indication which is a matter which we should take into account, albeit that it does not preclude the Attorney General on the facts of this case from referring the matter to this court. But finally, we also have to take into account the question of double jeopardy in this case, because the appellant faces the possibility that instead of being released as he would otherwise have been yesterday, he may have to face a further period of imprisonment after he had expected to be free. That, of course, does not entitle him to the same consideration as those who have been sentenced to non-custodial sentences and who then face imprisonment or detention, but nonetheless it is clearly a matter which we are entitled to take into account.

Despite the misgivings we have referred to, we give leave to the Attorney General to refer because we consider that this sentence was indeed lenient, bordering on the unduly lenient. But in the exercise of our discretion, for the reasons that we have given, we do not consider that it would be in the interests of justice to interfere with the sentence that the Recorder imposed in this case. For those reasons, we refuse to interfere with the sentence.