ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON
His Honour Judge Burrell QC
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SPENCER
HIS HONOUR JUDGE LODDER QC
(sitting as a Judge of the Court of Appeal (Criminal Division))
| REFERENCE BY THE ATTORNEY-GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988 HM ATTORNEY-GENERAL
|- and -
Khalid Missouri (instructed by The Registrar of Criminal Appeals) for the Respondent
Hearing dates: 2 May 2018
Crown Copyright ©
Lord Justice McCombe:
"It is my assessment that Mr Forsythe-Wilding has a wish to succeed in life, and understands that he must move away from an offending lifestyle in order to do this. However, his success will depend upon his engagement with the agencies that can assist him (Probation, GP, Drugs Intervention) and his ability to comply with the orders of the court. Any breach of these is likely to see him to return to custody for a significant period. I hope that this will provide a greater incentive for him to engage more fully than he has done so in the past."
"The defendant pleaded guilty to Possession with Intent to Supply on the following basis:
1. At the time of the offence the defendant was suffering from mental health problems and "on the road" to addiction from Heroin. He had been addicted to cannabis since his school years.
2. The defendant attended the address in question to purchase heroin in order [sic] supply it to friends and associates so that he could fund his own developing habit.
3. The defendant maintains that the money found in his possession £405 was money given to him by his mother who had withdrawn it from the bank."
"Where the defendant is dependant on or has a propensity to misuse drugs and there is sufficient prospect of success, a community order with a drug rehabilitation requirement under section 209 of the Criminal Justice Act can be a proper alternative to a short or moderate length custodial sentence."
The judge said that if he had been passing sentence upon the offender it would have been a short or moderate sentence in length, i.e. one of 16 months' imprisonment. It seemed to the judge, as he said, that the offender had a propensity to misuse drugs and that he was on the cusp of addiction. In the circumstances, therefore, there was a sufficient prospect of success with a DRR to enable the court to "take that chance". At p.10B-C of the sentencing remarks transcript the judge is recorded as saying:
"Now, I think you can do it and I have taken a bit of a chance with you. I have gone out on a limb because under the Guidelines it is strongly arguable you should have gone to prison, but I have taken my own approach to your situation. I do not see any point in sending a young man like you to prison when there is a chance of getting you sorted out and there is. But it is really up to you now, I have done my bit. It is up to you to take this opportunity."
"Shaquille Forsythe-Wilding is engaging with all requirements of his Suspended Sentence Order and is displaying the motivation to address those issues which resulted in his offences. He has made significant progress in the short time since his release from remand, and has achieved more in this time than on his previous sentences.
In discussing the appeal with him, he admits that he has found the process "stressful" but, to his credit, he has not given up and has continued to engage throughout. Having the opportunity to continue his rehabilitation work in the community should greatly reduce the risk of further offending."
We were told that the offender has now had his first review, before HH Judge Parker QC, who conducts such reviews at the Southampton Crown Court and that that review has passed satisfactorily.
"Every court – (a) must, in sentencing an offender, follow any sentencing guideline which is relevant to the offender's case, and (b) must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so."
He then argues that this gives the court "a wide discretion" to depart from the sentencing guidelines when it sees fit to do so in the interests of justice. He refers us then to a pre-Guideline case: Attorney-General's Reference No. 101 of 2009 (Matheson)  2 Cr. App. R (S) at page 524 (less conveniently sometimes cited as case 81 in those reports).
"12. … We want to say absolutely nothing which is capable of discouraging sentencing judges in the Crown Court from passing in a suitable case sentences of either drug treatment and testing orders (where still available) or community orders or sometimes (as here) suspended sentences with a drug rehabilitation requirement. Such orders are capable of being constructive, of capitalising on motivation to change and thus they are capable of being very much in the public interest. If a drug addict who is also in consequence a criminal can indeed be helped to put his use and abuse of drugs behind him, with the prospect that with that will pass habitual criminal offending, that is in everybody's interest.
13. There are two principal conditions in which such a course can properly be taken and they were helpfully set out, again by Rose L.J., in Attorney General's Reference (No. 66 of 2003) (Boujettif and Harrison)  EWCA Crim 3514;  2 Cr. App. R. (S.) 22 (p.106). In summary, first the offence must be of a kind where it will not undermine public confidence in the criminal justice system if a non-custodial sentence is passed. Secondly, and more relevantly for the present case, there must be a proper basis justifying a real reason to believe the defendant wants to rid himself of drugs. Without that there is no prospect of success. Courts need to be aware that many defendants, and perhaps particularly drug abusers, find it easy to make promises when they are otherwise confronted with the prospect of a long sentence of imprisonment. Simple optimism is not enough."
Mr Missouri submits that those circumstances arise in this case. He argues that the similar sentence in Matheson was found not to be unduly lenient and that in this case we should take similar view.
"14. In the light of the authorities, it is possible to identify, without purporting to be exhaustive, some of the factors relevant when considering whether it is in the public interest that a DTTO should be made:
(i) judges should be alert to pass sentences which have a realistic prospect of reducing drug addiction whenever it is possible sensibly to do so;
(ii) many offences are committed by an offender under the influence of drugs. The fact that a defendant was so acting is not in itself a reason for making a DTTO;
(iii) a necessary prerequisite to the making of such an order is clear evidence that a defendant is determined to free himself or herself from drugs;
(iv) a DTTO is likely to have a better prospect of success early rather than late in a criminal career, though there will be exceptional cases in which an order may be justified for an older defendant;
(v) it will be very rare for a DTTO to be appropriate for an offence involving serious violence or threat of violence with a lethal weapon;
(vi) the type of offence for which a DTTO will generally be appropriate is an acquisitive offence carried out to obtain money for drugs, though the fact that the motive was to feed drug addiction does not compel the conclusion that a DTTO should be made;
(vii) a DTTO may be appropriate even when a substantial number of offences have been committed;
(viii) a DTTO is unlikely to be appropriate for a substantial number of serious offences which either involve minor violence, or have a particularly damaging effect on the victim or victims. There must be a degree of proportionality between offence and sentence, so that excessive weight is not given to the prospect of rehabilitation at the expense of proper regard for the criminality of the offender;
(ix) material about the offender, which becomes available between sentencing and appeal to this Court, may be of particular significance as to the propriety of a DTTO. The Single Judge of this Court may therefore order a further up-to-date assessment in an appropriate case."