England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 13th December 2016

1. LORD JUSTICE BURNETT: The default position for those who are convicted of taking contraband items into a prison is an immediate custodial sentence, the length of which generally depends upon matters which include the nature of the items smuggled in, the use to which the prisoner provided with them will put them and the accused's own character including previous convictions and personal mitigation.
2. Many cases concerning smuggling contraband into prisons have come before this court. Ms Ahluwalia, who appears on behalf of the applicant this morning, has produced an extremely helpful bundle of those authorities. They include R v Cluskey [2016] EWCA Crim 1534, R v Boyton [2009] EWCA Crim 1773, R v Nathan Watson [2013] EWCA Crim 271, R v Hamilton [2016] EWCA Crim 78, R v Smak [2012] EWCA Crim 1280 and R v Ormiston [2016] EWCA Crim 363. Those authorities identify the real vice of smuggling contraband into prisons, which is well-known. The smuggling of such contraband can lead to disorder and also to criminality within those prisons.
3. The question before us is whether the circumstances of the applicant in this case are such that unusually the sentence of imprisonment should have been suspended. The application for leave to appeal against sentence has been referred to the Full Court by the Registrar. We grant leave.
4. At the Crown Court at Isleworth, on 24th November 2016, the appellant was sentenced by His Honour Judge McDowall to a total of 4 months' imprisonment in respect of three offences to which she had pleaded guilty. The first was conveying a list A article, namely cannabis, into a prison, contrary to section 40B of the Prison Act 1952. The second was conveying list B articles, namely SIM cards into a prison, contrary to section 40C of the Prison Act 1952 and the third was simple possession of the cannabis.
5. The facts were these. On 2nd July 2016 the appellant went to Wormwood Scrubs to visit her boyfriend. When she saw him the appellant passed to him a package wrapped in a condom which contained compressed herbal cannabis and 11 SIM cards. The items were later retrieved from her boyfriend during a search and the appellant was detained before she left the prison. She knew very well that the items were prohibited. The prison bristles with signs warning against taking in contraband, including drugs and SIM cards. Lockers are provided to enable visitors to deposit any unsuitable items they have on them. Visitors are required to sign a declaration confirming that they have nothing on them which is prohibited. The appellant signed such a declaration knowing it to be untrue.
6. Police were called and the appellant said that she had been forced into doing this by her boyfriend and the people in the cell next to him. The appellant's telephone was seized and its content looked at. It became apparent that she had arranged to collect the items from someone who was called "Gini's girl".
7. When interviewed by the police the appellant provided no further information because, as she explained, she was concerned about reprisals, not only against herself but against members of her family.
8. The appellant pleaded guilty on a written basis which was not challenged by the prosecution. There was no Newton hearing because the prosecution indicated that the circumstances in which the appellant smuggled in the contraband were "not within their knowledge". That has echos of the old formulae that the prosecution "cannot gainsay" the basis of plea which may be thought unfortunate. Whilst in this case there has been no suggestion that the basis of plea is other than accurate, a prosecutor should not be shy of submitting in an appropriate case that an accused should confirm on oath the basis of plea and thereby subject him or herself to cross-examination. That said the basis of plea was as follows:

"1. I received threats from my then partner... about bringing into prison what he said was weed. 2. [He] made indirect and repeated threats about my brother, references to his school and specifically stating that 'the only person who could keep my brother safe was me, so make sure I turn up'.

3. I deeply regret my actions that day, but seek to plead guilty as I accept that I could have reported these matters to the police or tried contacting third parties. I also accept that the threats stated over the phone were not imminent ones on reflection."

9. The judge proceeded to sentence without the benefit of a pre-sentence report. In the circumstances of this case that was an appropriate course. Neither do we need a report on the appellant to assist us in the appeal.
10. Ms Ahluwalia, who represented the appellant then as now, with her instructing solicitors put together a comprehensive bundle of materials to assist the judge, in support of the mitigation advanced on behalf of the appellant. It was directed towards persuading the judge to suspend any custodial term which was considered appropriate in this case.
11. A forensic clinical psychologist, Dr Sanya Krljes, provided a detailed report explaining the background to the appellant's offending and of the appellant herself. There was an impressive bundle of testimonials and references and a letter from the appellant explaining the circumstances.
12. A number of previous decisions of this court were referred to in the course of the hearing before the judge. Copies of the relevant Sentencing Guidelines Council Definitive Guideline on Seriousness and the Sentencing Council's Definitive Guideline on Community and Custodial Sentences were also helpfully produced by Ms Ahluwalia. She referred in addition to the resolution of the General Assembly of the United Nations of 16th March 2011 on the treatment of women prisoners and non-custodial measures for women prisoners. These are known as the Bangkok Rules although it does not form part of the law of the jurisdictions of the United Kingdom.
13. The judge concluded that the matters referred to in the medical report, the references and the letter from the appellant herself were matters which properly could mitigate the length of the sentence but that they did not carry sufficient weight to lead to the conclusion the sentence should be suspended. We note that a full discount was given for the appellant's guilty plea.
14. The appellant was born on 29th September 1988. She has no previous convictions. In the normal language of the criminal courts she was of good character. That said, the material in the references demonstrates that this appellant is of positive good character beyond the fact of having no previous convictions. She was a long-term volunteer with a community youth project in Hackney, having gained valuable insight when she did a degree focusing on Youth Justice matters. It is an unfortunate irony that the appellant has spent much of her own adult life trying to keep others out of trouble. She has also been a long-term volunteer with St Andrews Football Club where her younger brothers play. They are respectively 15 years old and 9 years old. Until these events engulfed her, she worked as a support worker at a school looking after children with special needs. She had shown herself extremely able in providing support not only to the children at that school but also their parents. She had progressed to the stage of beginning to teach maths to the children.
15. Her own letter and the report from the psychologist provide considerable insight into the circumstances of the offending. Her boyfriend had threatened to harm her brothers if she failed to do as he asked.
16. The psychological report explains this appellant's history of falling in with men who she trusts but who are abusive and violent. The man she visited in prison was not the first such person. Dr Krljes paints a vivid picture of a vulnerable, weak and impressionable woman. She was experiencing a range of psychological difficulties which included low mood, low self-esteem, hopelessness and anxiety. She manifested with a number of symptoms of post traumatic stress disorder. Dr Krljes considered her socially isolated and hyper vigilant.
17. The appellant reported a history of physical and emotional abuse in the context of intimate relationships which appeared to have led her to develop Battered Woman Syndrome. These events had resulted in what Dr Krljes describes as "learned helplessness" and amongst the features redolent of PTSD are episodes of re-experiencing the violence, numbing of responsiveness, hyper arousal, disruptive interpersonal relationships and difficulties with body image. Dr Krljes opines that the appellant's traumatic life experiences had left her vulnerable to further abuse.
18. The history recounted in the psychological report, which we should say goes into more detail than is necessary to summarise in this judgment, indicated that she was more vulnerable in giving into and complying with her partner's request to bring the prohibited items to prison than would have been the case in someone with anything approaching normal resilience.
19. The material before us also includes a detailed statement from the appellant's mother which explains her own considerable physical difficulties. The appellant is thus responsible not only for caring for her mother from time to time when she is unwell but also when those events occur effectively becoming the primary carer of her two young brothers to whom she is devoted.
20. It should not be thought that the fact that someone who takes contraband into a prison has been put under pressure by a relative, partner, or friend, will carry much weight in the generality of these cases. It is relatively rare for people who carry such contraband to do so entirely at their own initiative and pressure of some sort is regularly brought to bear.
21. Ms Ahluwalia realistically recognises that the circumstances of the coercion, particularly where, as here, the appellant explicitly recognised that the pressure was not immediate and could have been reported, provides little support for the submission that the sentence should have been suspended.
22. The features that Ms Ahluwalia in particular relies upon are the constellation of psychological problems to which we have adverted, the positive good character of this appellant and the unusual circumstances which lead her to assume caring responsibilities for both her mother and younger siblings from time to time.
23. We are persuaded that this very unusual combination of circumstances justifies the quite exceptional course of imposing a suspended sentence in this case.
24. At the heart of the appellant's problems is her tendency to associate with men who treat her badly. They become violent and abusive. But she is unable to distance herself from them. They have ended up in prison. For that reason, whilst we are prepared to suspend this sentence, in considering the operational period, we conclude that it should be a long one, namely 2 years. Had the sentence been imposed at the Crown Court on 24th November, it very likely that an unpaid work requirement might have been appropriate. But the appellant has been in custody now for 3 weeks. In those circumstances, we shall do no more than suspend the sentences imposed by the judge which, as we have indicated, totalled 4 months' imprisonment, for a period of 2 years. The ancillary orders made by the judge are unaffected. To that extent this appeal is allowed.