England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		3 February 2010

THE LORD CHIEF JUSTICE:

1. On 10 September 2009, in the Crown Court at Isleworth, before His Honour Judge Katkhuda, both appellants pleaded guilty to being knowingly concerned in the fraudulent evasion of the prohibition on importation of a Class A drug (cocaine). They were each sentenced to six years' imprisonment with an appropriate direction under section 240 of the Criminal Justice Act 2003 together with appropriate orders for forfeiture, destruction and/or disposal of the drugs. Valentas appeals against sentence with the leave of the single judge. Tabuns' application for leave to appeal against sentence was referred to the full court by the Registrar. Bearing in mind that an identical point arises in each case, like Valentas, Tabuns will be given leave to appeal.
2. The facts of this case are these. Valentas and Tabuns are nationals of Latvia who lived in the United Kingdom. On 25 June 2009 they arrived at Heathrow airport having travelled there from Peru via Madrid. Tabuns was questioned and said that he had been on holiday to Peru with Valentas, and that Valentas had paid for the flights and hotels for both of them. When he was interviewed, Valentas initially denied that, but subsequently admitted that it was true. Both men were arrested.
3. An X-ray showed that Tabuns had swallowed a number of packages. In due course 85 packages were retrieved. They contained the equivalent of 475 grams of cocaine at 100 per cent purity. When he was interviewed he gave a prepared statement in which he made full admissions about his own involvement in the importation of cocaine but asserted that Valentas had no involvement whatsoever.
4. An X-ray of Valentas was negative. When interviewed he handed in a prepared statement saying that he had been away on holiday with Tabuns. He denied any knowledge of the drugs, but during a prison search of his cell 97 packages of cocaine were found in his belongings. These contained the equivalent of 517 grams of cocaine again at 100 per cent purity. This time when he was interviewed he made full admissions. He said that he had swallowed the drugs in Peru and that he would have been paid for bringing the drugs into this country.
5. In a basis of plea both appellants asserted that they were recruited as individuals and were to be paid as individuals. Each accepted responsibility for the drugs that he had consumed and brought into this country, but did not accept any responsibility for the criminal involvement in the drugs imported by the other. Therefore they accepted individual but not joint responsibility.
6. Valentas was born in February 1983. He has nine previous convictions for thirteen offences, but none for drugs offences. Tabuns was born in August 1982. We have no knowledge of his previous convictions, if any.
7. The sentencing judge acknowledged the basis of plea. He addressed the issues in the context of the well-known guideline case of R v Aramah (1982) 4 Cr App R(S) 407. He suggested that the appellants had posed as legitimate travellers to smuggle these dangerous drugs into the country. He was invited to consider a consultation paper issued by the Sentencing Advisory Panel which, as we shall see in a moment, if implemented, would suggest that sentences for offenders of this kind may be reduced. The judge took the view that that paper did not represent the law which he was required to apply. Giving credit for the pleas of each appellant he sentenced them to six years' imprisonment.
8. In an attractive submission advanced with great care by Sir Jonah Walker-Smith it is not said that the sentence imposed by Judge Katkhuda did not properly reflect the current guidance offered by this court to judges faced with the problem of sentencing in drug importation cases. However, measured against the publication by the Sentencing Advisory Panel of its consultation paper in April 2009 on sentencing for drug offences, he argues that the sentences should be regarded as excessive.
9. The submission raises a short point of principle. The guidance proceeds on the basis that the decision in Aramah required sentencing courts to do what they could to deter the importation into this country of dangerous drugs because of the dreadful consequences that follow from the misuse of Class A drugs. In the course of his guideline judgment Lord Lane CJ said:

".... anything which the courts in this country can do by way of deterrent sentences on those found guilty of crimes involving Class A drugs should be done."

The Sentencing Advisory Panel observed that this thinking appeared to have guided sentencing in such cases ever since. That analysis appears to us to be correct. In the text of the consultation paper, under the heading "Deterrence", the Panel notes that deterrent sentencing has the potential to influence the behaviour both of the individuals sentenced and of others who may be considering committing similar offences. The degree to which sentences have the capacity to deter either group will depend as much on the motivation for the offending as on experience or awareness of sanctions.

10. In a further passage under the same heading the Panel offers its provisional sentencing proposals. It says they are "based on an assessment of offence seriousness that recognises the wider social harms resulting from this form of offending behaviour but does not increase sentence lengths on the grounds of deterrence, relying instead on the prospect of confiscation (and other similar orders) to have the desired additional deterrent effect". However, the Panel goes on to say that this provisional approach will be "reviewed in light of the responses we receive".
11. Paragraph 34 of the document reads as follows:

"The Panel is not in any way suggesting that such offences have become less serious or that the sentencing response should be less robust. However, it is seeking views on whether, given the potential for a confiscation order, a custodial sentence in which the length is determined primarily by purposes other than deterrence and, where suitable, a fine, might not be a more appropriate and, potentially, a more effective disposal."

12. Perhaps by way of emphasis it is worth highlighting two particular questions among a large number on which the Sentencing Advisory Panel is seeking a response:

"Question 1

Are you aware of any research or other evidence that demonstrates the effectiveness or otherwise of increased sentence lengths for drug offences either in deterring individual sentenced offenders from committing further drug offences or in deterring others from committing similar crimes?

Question 2

Do you agree that, in serious cases, powers such as those available under a confiscation order or a serious crime prevention order are now likely to be a more effective deterrent than increasing the length of a custodial sentence beyond that necessary to meet any other purposes of sentencing? Please give your reasons."

13. That is material on which Sir Jonah has relied. He proposed to take us to a draft of the Panel setting out possible sentencing guidelines but we discouraged him from doing so because this is a short issue of principle. We accept that if the Panel's consultation paper becomes appropriate guidance in due course, it is arguable that the sentences on the appellants were excessive.
14. In earlier years the Sentencing Advisory Panel published advice formally and delivered it either to this court or, when it came into existence, the Sentencing Guidelines Council. It was always accepted that the advice contained in such a document might be useful to a sentencing judge provided that care was taken before any attempt was made to apply it. Thus, for example, in R(DPP) v Camberwell Youth Court [2004] EWHC 1805 (Admin), Kennedy LJ pointed out that the advice of the Panel had no legal force but that it was "helpful as an indication of a considered response to the sentencing problem posed in cases such as this".
15. The suggested was adopted by Smith LJ in R(W) v Brent Youth Court [2006] EWHC 95 (Admin), when she said:

"In cases where there is no guidance from the Sentencing Guidelines Council it is permissible and helpful for the court to consider any relevant publication of the Sentencing Advisory Panel."

Having reflected on Kennedy LJ's observations in the Camberwell Youth Court case, Smith LJ continued:

"In short, providing that the court recognises that the advice does not carry legal force, it is legitimate and helpful to consider such a publication."

As will be apparent from the passages that we have quoted, although there is no reference in the judgment of Smith LJ to guidance from this court, her entire approach was premised on the basis that there was no guidance from the Sentencing Guidelines Council. As it seems to us, her language would have applied equally to a case where guidance had been given in this court.

16. Our attention was drawn by Sir Jonah to R v Doidge [2005] EWCA Crim 273. At paragraph 15 Smith LJ, who gave the judgment at the invitation of the Vice President (Rose LJ), said:

"This court wishes to make it clear that it will not, in general, be appropriate for advice of the Sentencing Advisory Panel to be cited to this court. Advice from the Sentencing Advisory Panel may well be useful for sentencers and advocates as background material, but it cannot found a ground of appeal."

Pausing there, Sir Jonah was entirely undeterred by those observations when he made his submissions to us. Because of the way in which those submissions were developed it did not occur to us for one moment that it was inappropriate for him to argue the appeal in the way that he did. The judgment continues:

"This is because such advice may or may not be accepted by the Sentencing Guidelines Council. Draft guidelines produced by the Council may or may not be in accordance with the Panel's Advice. Final guidelines may or may not be in accordance with the draft guidelines. Only the guidance issued by the Sentencing Guidelines Council is to be applied by the courts."

The significant features of this passage are that the advice from the Panel could be regarded as background material; and secondly, and in the same light as the observation made earlier, although Smith LJ was reflecting on guidance issued by the Sentencing Guidelines Council, that was in the context of contrasting the advice of the Sentencing Advisory Panel with the definitive guideline issued by the Sentencing Guidelines Council. In precisely the same way, only guidance issued by this court is to be applied by the courts.

17. The only other authority to which any reference is necessary is Attorney General's Reference No 88 of 2005 [2005] EWCA Crim 3178, where Rose LJ, although not in the least critical of the sentencing judge for referring to the advice of the Sentencing Advisory Panel and the draft guidance issued by the Sentencing Guidelines Council, observed:

"As this court has said on previous occasions, a considerable degree of care has to be exercised with regard to such advice and such draft guidelines because they may or may not ultimately result in a final guideline from the Sentencing Guidelines Council to which the courts are obliged, statutorily, to have regard."

18. This summary of the relevant authorities seems to us to indicate a very clear principle. The proposals of the Sentencing Advisory Panel are proposals only. As we have shown, they form part of a public consultation process. At the conclusion of the consultation process, they may or may not be amended. Thereafter, the proposals would have fallen to be considered by the Sentencing Guidelines Council, and will now be considered by the new Sentencing Council. At that stage the Sentencing Council will decide whether or not to issue a definitive guideline, and, if so, the form such guidance should take. Until there is a definitive guideline issued by the Sentencing Council, although the proposals of the Sentencing Advisory Panel are of considerable interest as part of the background which sentencing judges may wish to bear in mind, the proposals themselves do not constitute guidance to sentencers which serve to displace, or amend or in any way undermine the authority of the guidance issued in guideline decisions of this court. They therefore provide no justifiable basis for interfering with a sentencing decision in which the sentencing judge applied the existing guidance of the court. For the avoidance of doubt -- and we understand from Sir Jonah that there may be some inconsistency of judicial approach -- the way in which Judge Katkhuda applied the guideline decision in Aramah was entirely correct.
19. As part of his submissions, Sir Jonah invited us to consider whether we should offer revised guidance, taking into account the proposals of the Sentencing Advisory Panel, at any rate in the context of offenders like these two appellants who were the "mules" who brought the cocaine into this country.
20. We decline to do so. There is a very carefully structured process which will eventually culminate in the issue of a definitive guideline by the Sentencing Council. That will then impact on sentencing judges in accordance with statute. The form that this definitive guideline will take is uncertain. For individual judges to seek to guess in advance the form it may take will be productive of inconsistency and indeed incoherence. For the time being it would be premature for this court to intervene in the processes.
21. Accordingly, notwithstanding the careful argument advanced by Sir Jonah, these appeals will both be dismissed.

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