ATTORNEY GENERAL'S REFERENCE
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
B e f o r e :
MRS JUSTICE JEFFORD DBE
HER HONOUR JUDGE MUNRO QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
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Wordwave International Ltd trading as Epiq
165 Fleet Street, London EC4A 2DY
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(Official Shorthand Writers to the Court)
Miss D Collins appeared on behalf of the Offender
Crown Copyright ©
LORD JUSTICE TREACY:
(i) On 1st April 2016, for possession of cocaine and crack cocaine with intent to supply, he was sentenced to sixteen months' imprisonment.
(ii) He was released from that sentence in December 2016.
(iii) Whilst serving that sentence, he was found in prison in possession of a mobile phone. He was sentenced on 5th May 2017 at the magistrates' court to twelve weeks' imprisonment suspended for twelve months.
(iv) On 27th April 2017, for offences of possession with intent to supply cocaine, heroin and crack cocaine, and possession of two bladed articles, he was sentenced to two years' imprisonment suspended for two years. There were requirements of 150 hours' unpaid work, a twelve month drug rehabilitation requirement and a 20 day rehabilitation activity requirement. Sentence was imposed on that occasion by the same judge who dealt with the matter before the court today.
12. The judge ultimately held that it would be unjust to apply section 110 and he passed sentences at a lower level. The transcript shows that his initial view was that he must apply section 110. However, Miss Collins, who has also appeared before us today, persuaded him to change his mind. The reasons advanced were that, having been released from custody to the Birmingham area where he had previously been involved with drugs, the offender felt that he had little choice but to offend in order to reduce his drugs debt. Reliance was also placed on his age. The judge said that, even with a reduction for the guilty plea, the application of section 110 would result in a long sentence for a young man of 20 years of age serving his first significant prison sentence. The judge had also received a letter written by the offender in which he expressed regret and blamed a lack of support after release, as well as mentioning the matters referred to above.
"There has been a clear steer from this court in recent years that the word 'exceptional' is not to be diluted; sympathy for an offender is not enough to prevent a judge from doing their statutory duty."
We recognise that the test to be applied under the 1968 Act is slightly different from that which applies in this case, but the sentiments expressed there, in our view, have a degree of force.
(a) Section 110 should have been applied.
(b) In any event, a sentence of at least seven years' detention before credit for the guilty plea was appropriate, having regard to the offences committed on this occasion. The Sentencing Council's guideline shows that in a drugs supply case involving a category 3 "significant" role, there is a starting point of four years six months, with a range from three years six months to seven years' custody. There is then the production of crack cocaine to be considered in addition.
(c) Given minimal compliance with the suspended sentence imposed in April 2017, the judge was wrong to activate only twelve months of the suspended sentence.
(d) The judge was wrong not to impose any penalty for breach of the suspended sentence imposed in May 2017.