England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2
		Friday, 23rd March 2007

1. MR JUSTICE MACKAY: On 26th October 2006 at Chelmsford Crown Court, this applicant pleaded guilty to being concerned in the supply of Class A drug, cocaine, and was later sentenced to three-and-a-half years' imprisonment. The Registrar has referred his application for leave to appeal to this Court.
2. Accused with him were two other men Darren Jones pleaded guilty to being concerned in the supply of cocaine and to a second count of dangerous driving and was sentenced to 4 years' imprisonment in total, being three-and-a-half years for the supply of cocaine and 6 months consecutively for the dangerous driving. A third man, Paul Baker, pleaded guilty to possessing cannabis and possessing criminal property and received a sentence of 18 months.
3. This all arose out of the observation of a meeting at a petrol station near Colchester. The car driven by Jones met up with another car driven by Baker and a package changed hands, the vehicles separated and police stopped them. Baker was arrested and in addition to a small amount of cannabis on him, he had a bag with £14,835 in it. He gave a story about going to buy a car in London. Jones drove off at speed, hit a police vehicle and there was a pursuit and he was eventually forced to stop. As he came to an halt the applicant, who was sitting in the passenger seat, threw a bag from the window, and that was found to contain 498 grams of cocaine, which was the equivalent of 159 grams of 100 per cent purity and, depending on how it was sold or packaged for sale, was worth something between £17,500 and £29,000. So, the Crown's case was that Jones had taken the money from London and had handed it over to Baker in return for the drugs.
4. As is almost always the case in this class of case, a basis of plea was put in by both Jones and this applicant. Jones' basis was this. He was a cocaine addict. He was in significant debt to his dealer. He was not in a position to repay. He was told he could work off part of the debt and avoid a punishment beating if he delivered this quantity of money to pay for drugs. He feared for himself and his family, but he accepted that it all stopped short of a defence of duress.
5. This applicant put in a basis of which we should read:
6. He was picked up by Mr Jones from London in the Ford Focus as Mr Jones had agreed to take the defendant back to his house in Clacton.
7. Whilst in the Focus the defendant became aware that Mr Jones was going to exchange cash with a third party. The defendant was aware this cash was for drugs.
8. When chased by the police the defendant threw the drugs that were in the Focus out of the passenger window.
9. The defendant made no financial gain from this offence.
10. This was the sole occasion the defendant had been concerned in the supply of any drugs.

It is borne in mind that what he admitted to was in the words of the count "being concerned in the supplying of a controlled drug".

11. In sentencing the two men, the learned judge said that effect that he saw no reason to differentiate between them. He expressed what he called the "great reservations" about the basis of plea. He was entitled to say that, and got remarkably little assistance from prosecuting counsel at the time as to what exactly that meant. That said, he did not call for a Newton hearing to determine any issue of fact because he thought it was not necessary. What could be said on any view of the matter was that at least from a time before the rendez vous between the two cars at the petrol station, the applicant was accepting that he knew he was in a car with a large sum of money which was to be exchanged for drugs and he went along with that.
12. Both these men, the applicant and Jones, were sentenced leniently for an offence of this nature. We need go no further than the familiar case of R v Djahit [1999] 2 Cr App R(S) 142, to see that even a low level addict retailing Class A drugs on the street, without previous convictions, in order to fund his own drug taking habit, can expect, after conviction at trial, to receive a 6-year sentence from which an appropriate discount will be made for a plea of guilty and any further personal mitigation. This particular operation was certainly one step up from the level of street dealing. Any involvement with wholesale level Class A drug dealing, as was this, would fully justify a sentence higher than that that was passed in this case. The only possible issue in this case therefore, and it is the one on which Miss Whawell rightly concentrates, is disparity. The test for that is familiar: would a right- minded member of the public, knowing the facts of the case, have thought something must have gone wrong with the administration of justice if he saw or she saw this applicant and Jones treated, in terms of sentence, in the same way as each other in respect of this count?
13. In our judgment, when that principle, so often in play in this Court, was explained to that same right-minded person, we are sure he or she would have understood why the judge acted as he did. Jones, for example, had particular mitigation of his own, to which we have referred in his basis of plea. There was also the principle of totality to be taken into account because he fell to be sentenced for a distinct offence which did not involve the applicant, namely dangerous driving. We are not satisfied that it was even arguably the case that this sentence was wrong in principle or manifestly excessive. Both men were actively involved in different ways in this supply operation, approaching it though they did from different directions. This application is without merit and must be dismissed.