England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/06/2017

Mrs Justice Whipple:

1. On 10 November 2016, in the Crown Court at Leicester, the appellant pleaded guilty to one count of supplying Class A drugs (heroin) and a second count of possession with intent to supply Class A drugs (heroin). He was sentenced to 3 years' imprisonment on each count to be served concurrently.
2. He appeals against sentence by leave of the single judge.
3. The facts, in summary, are these. On 7 February 2016, prison officers were monitoring the exercise yard of HMP Leicester via CCTV. The prison officers saw the appellant pass a package to another inmate and as a result of that, the appellant was stopped and searched by prison officers before he was taken back to his cell. During the course of the search the prison officers found two separate clear plastic bags. One of the bags contained 1.04 grams of diamorphine at 63 % purity and the other bag contained 13 small wraps of diamorphine weighing 0.94 grams also at 63 % purity. The 13 wraps were made using prison documentation. The value of the drugs in prison was around £2,800. The appellant was arrested. The appellant answered "no comment" to the questions he was asked during his interview.
4. He was arraigned and pleaded guilty on 10 November 2016, and was sentenced by Mr Recorder William Edis QC on the same day.
5. In passing sentence, the Recorder found that a larger amount of undifferentiated heroin had been passed into the prison and had been split up into smaller quantities by someone in the chain of command. He said that drugs in prison were a curse and that the drug trade in prison presented a significant problem to prison authorities, uninvolved prisoners and society as a whole. It created a market which was often enforced by violence, threats and intimidation. The appellant was 28 years old with 14 convictions for 26 offences, including a 2007 conviction for possession of crack cocaine with intent to supply for which he received a community based sentence. He had a subsequent conviction for possession of class C drugs which the Recorder said did not aggravate the offending. In July 2010 the appellant had been sentenced to 7 years imprisonment for three offences of robbery, and it was the recall on that sentence which led to the appellant being in prison in February 2016 when he committed these offences. The Recorder noted the appellant's personal mitigation, and the fact that between the release from prison and the index offending the appellant had lived a reasonably worthwhile life. In addition, the appellant had pleaded guilty at the first available opportunity. The Recorder referred to the Sentencing Council's Definitive Guideline on Drug Offences. He put the appellant in category 3 significant role for Class A drug offences. The guideline starting point which the Recorder adopted as the appropriate post-trial sentence was 4 ½ years. Applying a one third discount for the guilty plea reduced the sentence to one of 3 years' imprisonment on counts 1 and 2 (concurrent).
6. In his appeal to this Court, the appellant, by his counsel Mr Isaacs, argues that the Recorder erred in putting the supply offence within category 3, because it should have been treated as category 4 and sentenced accordingly. In consequence, and bearing in mind the appellant's personal mitigation, he argued that the sentence was manifestly excessive.
7. The arguments before us centred on the guideline, as that has been interpreted and applied in the following three authorities, none of which appear to have been cited to the Recorder: R v Sanchez-Canadas [2012] EWCA Crim 2204, R v Bayliss [2013] EWCA Crim 1067 and R v Melim [2014] EWCA Crim 1915.
8. At the sentencing hearing the parties were in agreement that the appellant should be considered to have fulfilled a 'significant role'. The Recorder referred in terms to the subcategory contained in the guideline under the heading 'significant role', namely "supply other than by a person in a position of responsibility, to a prisoner for gain without coercion". The Recorder rejected the appellant's suggestion that he had acted under coercion, and concluded that the appellant's role was significant. The appellant does not argue against that part of the Recorder's conclusions. In our judgment, this appellant's role was properly categorised as significant.
9. The issue in this appeal relates to the categorisation of harm. Category 3 of the guideline includes the following types of supply which are not dependent on quantity of drugs: "selling directly to users ('street dealing')" and "supply of drugs in prison by a prison employee". Mr Isaacs argues that because this was not a "supply of drugs in prison by a prison employee" within the latter type, it falls outside category 3 altogether. He argues that the guideline deals with supplies in prison in terms, and only those by a prison employee are within category 3; any other type of prison supply must be classified according to the quantity of the drug involved, and in this case the quantity was within category 4.
10. Mr Isaacs relies on the three authorities already noted in support of his argument. The first of those in sequence is Sanchez-Canadas. In that case, the appellant had sent a prisoner a box containing trainers. The soles had been adapted and hidden within them were 10 ¾ grams of heroin and 23 grams of cannabis resin in eleven wraps. The appellant's explanation in interview was that the drugs were destined for his friend, whose money the appellant had been managing. The appellant was sentenced on the basis that his role was significant and the harm fell within category 3, the sentencing judge saying that although the indicative quantities fell within category 4, their value within prison would be much greater than on the street, and so the offending was elevated this to harm category 3. The appeal against the sentence of 45 months was dismissed but the appeal court arrived at that sentence by a different route than that adopted by the sentencing judge. Specifically, the appeal court held that this was category 4 harm, with a starting point at the top of that category range, significant role. So far as the harm category is concerned, the Vice President (Hughes LJ) said this:

"[10] …the judge's approach of lifting the category to category three because this was a supply into prison, runs into the difficulty that the guidelines specifically contemplate exactly that elevation for some kinds of supply to prisoners but not for this one. The guidelines indicate that there should be such a lift where the offence "is supply of drugs in prison by a prison employee", and this was not. We do not for a moment however dissent from the judge's proposition, which is amply borne out by the universal experience of criminal courts, that supply of drugs into prison is in itself inherently more serious than the supply of drugs generally is. That is because drugs in prison are a currency, an instrument of power, extortion and oppression and they fundamentally undermine the discipline and good order which is essential to running a prison properly. However, the right way to deal with it is not to raise the category as the judge did."

11. In confirming that this was significant role, the Vice President said:

"[13] …it was perfectly proper to treat this level of culpability as more accurately described as a significant role than as a lesser role. The supply of drugs into a prison ought normally to be regarded as best fitting that culpability category. It will ordinarily demand a prison sentence, even when there is no commercial motive and indeed even where the supplier has come under some moral pressure. Supplies by prison officers or other prison employees are more serious still and are separately dealt with by being placed automatically into category three in the harm scale, irrespective of quantity."

12. We pause here to note that this case concerns drugs smuggled into prison by a friend or associate outside prison. There was no suggestion that the friend or associate was involved in dealing drugs, either inside or outside prison. No consideration was given, therefore, to the other part of category 3 which relates to 'street dealing'.
13. The second case is Bayliss. These were appeals against sentence by two family members and an application for leave to appeal by a third. Norma Bayliss was the mother of Faine Bayliss, and Candice Ball was Faine Bayliss' partner. The three had been jointly concerned in the supply of cannabis and buprenorphine to Faine Bayliss, who was at the time of the offences a serving prisoner. The quantities recovered were 454 milligrams of cannabis and 1.552 grams of buprenorphine. The sentencing judge had sentenced all three on the basis that the offending fell within category 3 harm, rejecting the submission advanced before him that this was category 4. On appeal, Faine Bayliss' counsel argued that the weights of the drugs were firmly within category 4, and that the guidelines covered cases of smuggling drugs into prison, which offences were only elevated to category 3 when they were committed by prison employees [8]. Norma Bayliss and Candice Ball argued that Sanchez-Canadas applied and that their offending fell within category 4 [10]. The appeal court (His Honour Judge Melbourne Inman QC giving judgment) held that the sentencing judge had been in error in escalating the offending from category 3 to category 4 to reflect the fact that the supply was into prison, and that the quantities of drugs were clearly within category 4 [13]. The court held that the sentence of 2 ½ years for Faine Bayliss was not manifestly excessive; it was properly at the top end of the range for a category 4 offence, leading role, less discount for guilty plea. Leave was refused. Norma Bayliss' appeal against sentence of 10 months' imprisonment was dismissed. Candice Ball's appeal against sentence of 16 months' imprisonment was allowed and a sentence of 10 months substituted.
14. Again, we pause to note that there was no suggestion in Bayliss that any of the offenders were dealing drugs. There was no discussion of the street dealing limb of category 3.
15. The third and most recent case is Melim. That was an appeal against a sentence of 3 years' imprisonment for two drugs offences. The appellant had sent letters to two inmates, the first containing 33 grams and the second containing 18 grams of cannabis resin. The sentencing judge said that he was not bound by the guideline on the facts of the case because this was a supply into prison. He imposed a sentence of 3 years on a plea. Wilkie J, giving the judgment of the Court of Appeal, said this:

"[14] Where the guidelines deal with the level of harm, in the vast majority of cases, that will be assessed by reference to the quantity of drugs involved in the supply. However, exceptionally, in the case where the offence is supply of drugs in prison by a prison employee, the starting point is said not to be based on quantity but will fall into category 3 of harm, even though the quantity of the drugs supplied is not of an amount which would normally result in harm being assessed at that level but would be at the lower level of category 4.

[15] The amount of drugs which were supplied and reflected in these two counts would normally have been placed within category 4 level of harm. In the authorities, applying the sentencing guidelines to offending comprising supply by a non-prison employee into prison, certain principles emerge. We have been referred particularly to the case of R v Sanchez-Canadas … and R v Bayliss … The effect of these decisions is to reflect the guidelines, that is to say in terms of culpability, the role is normally said to be at least significant. Where, as here, the quantity would otherwise fall within category 4 and the supply is by a non-prison employee, then that is the level of harm which must apply. However, those cases also establish the proposition that the fact that the offending comprises supply of drugs within or into prison is to be regarded as a highly aggravating feature, normally placing the level of sentence at the top end of the appropriate range described in the guidelines."

The appeal was allowed, and a sentence of 9 months was substituted.

16. We note that in this case too, there was no suggestion of dealing within prison, nor in consequence any consideration of the street dealing limb of category 3.
17. All three of these cases concern relatively small quantities of drugs being smuggled into prison from outside by friends, associates or relatives, not being employees of the prison. Because the supplier or associate in each case was not a prison employee, and the quantities were small, the harm caused by the offending fell into category 4. In none of these cases was there any suggestion that the offenders had been engaged in drug dealing, and in none did the sentencing judge or the appeal court consider the part of category 3 which refers to 'street dealing'. In short, the facts of all these cases are very different from the facts of this appeal; and the issue which arises in this appeal was simply not canvassed or addressed in any of them. In our judgment, these authorities do not assist the appellant.
18. Under the guideline, three types of supply fall within category 3: (i) where the offence is selling directly to users, ie 'street dealing', (ii) where the offence is a supply in prison by a prison employee, and (iii) where the quantity of drugs puts the offending into that category. With regard to (i) and (ii) the amount of the drug involved is irrelevant – the categorisation depends on the nature of the supply and not the amount of the relevant drug actually supplied. These are different routes into category 3, each of which is independent of the others. The cases referred to earlier demonstrate that a supply into prison which is made by someone other than a prison employee may fall outside category 3 if the recipient is the end consumer of the drugs and the amount supplied is smaller than the quantities identified in the guideline. But the supply of drugs within the prison community is not automatically excluded from category 3 just because it is undertaken by someone other than a prison employee. To the contrary, the supply by a prisoner selling directly to others can still fall within category 3, either because of the quantity involved or, as in this case, because the facts disclose that it was 'street dealing'. Whether it does or not will depend on the facts of the case.
19. We make the obvious point that 'street dealing' is a term of art. The supply does not need to take place on a street in order to be 'street dealing'. The essence of street dealing, as the guideline states, is that it involves selling directly to users. A person engaged in that activity is a 'street dealer', even if they are operating within the prison walls, just as they would be if they were operating outside prison, on the street.
20. We return to the facts of this case. The number of wraps in the possession of the appellant, wrapped in paper from prison documentation, and the fact that the appellant was observed selling drugs in the yard serve to confirm that he was, in effect, street dealing. Defence counsel acknowledged that if the behaviour of the appellant, as captured on prison CCTV, were transposed to the street then significant role category 3 would be the correct classification of the offence. It would be illogical if the fact that the appellant was in prison produced a different result and wholly unjust that this offence should be put in a lower category than if he had been dealing on a street corner.
21. The Recorder's starting point was 4 ½ years. That is the guideline starting point for Class A, category 3 significant role. Following Melim at [15], the Recorder should have moved up from that starting point towards the top of the range, to reflect the highly aggravating feature of a supply within prison.
22. The Recorder considered the aggravating and mitigating factors. He concluded: "Doing the best I can to balance those factors out, I think the starting point should be the end point…". There was personal mitigation available, but, if anything, the appellant was somewhat fortunate in this assessment.
23. The Recorder then reduced the sentence by a third to reflect the plea entered at the first available opportunity and imposed a sentence of 3 years' imprisonment.
24. The sentence was not excessive and accordingly this appeal is dismissed.