Neutral Citation Number: [2018] EWCA Crim 1180
Case No: 201801273 A4
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHAMPTON
His Honour Judge Burrell QC
T20170386
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/05/2018
Before :

LORD JUSTICE McCOMBE
MR JUSTICE SPENCER 
and
HIS HONOUR JUDGE LODDER QC
(sitting as a Judge of the Court of Appeal (Criminal Division)) 
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REFERENCE BY THE ATTORNEY-GENERAL UNDER S.36 OF THE CRIMINAL JUSTICE ACT 1988

Between:

	HM ATTORNEY-GENERAL	Applicant	
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	SHAQUILLE FORSYTHE-WILDING	Respondent	

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  Ben Lloyd (instructed by HM Attorney-General) for the Applicant
Khalid Missouri (instructed by The Registrar of Criminal Appeals) for the Respondent

Hearing dates: 2 May 2018
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Judgment Approved
Lord Justice McCombe: 
1.	This application by H.M. Solicitor-General to refer to this court a sentence which he considers to be unduly lenient was heard by us on 2 May 2018. At the conclusion of the hearing, we announced our decision that we would grant leave, and that we found the sentence passed to have been unduly lenient, but that we declined to interfere with the sentence. We said that our reasons for our decision would be delivered in writing at a subsequent date. These are our reasons.
2.	On 21 February 2018 in the Crown Court at Southampton, before HHJ Burrell QC, the present offender, Shaquille Forsythe-Wilding, pleaded guilty to an offence of possessing a controlled drug of Class A (heroin) with intent to supply, contrary to s.5(3) of the Misuse of Drugs Act 1971. On 28 February 2018, he was sentenced by the learned judge to a term of imprisonment of 18 months, suspended for 2 years. The offence was committed during the operational period of a previous suspended sentence of 8 weeks’ imprisonment, imposed on 27 September 2017 by the Justices for the County of Dorset, for an offence of possession, inside a prison and without authority, of a specified item (a mobile telephone) (contrary to s.40D(3A) and (5) of the Prison Act 1952). On being sentenced for the drugs offence in February this year, the judge ordered this previous sentence to remain in force with its operational period being extended to 2 years.
3.	The facts of the case were these. On 18 December 2017, police officers were called to a property in Southampton at 12:35p.m, to a suspected burglary. The occupier let the police into the premises. Two men were present and they were initially arrested on suspicion of burglary. One of them was the partner of the occupier’s daughter and she had given him a key (for that reason they were discharged in respect of the suspected burglary). The officers observed drug paraphernalia as well as a quantity of white powder. A police drugs dog also located a blue bag outside; it appeared to have been thrown from the property. The bag contained a quantity of white powder (crack cocaine). These two men were arrested on suspicion of being concerned in the supply of Class A drugs. A third man (this Offender) had run from the address. He was chased by the police and detained following a struggle during which the police used CS gas. In response to his arrest the Offender said, ‘I should never have run from the house. I wish I had arrived at the house minutes later’. The Offender was in possession of £405 in cash. In police custody, the Offender was strip-searched and he appeared to have something concealed in his anus. Eventually he produced a wrap of brown powder from his anus. This contained some 3.79 grams of heroin, which were wrapped in several layers of white plastic. The wholesale value was about £100 and the potential street value was about £380. The item seized was capable of making at least 38 x 0.1 gram street “deals”. The Offender was interviewed by the police later on 18 December 2017. He answered no comment to all questions asked.
4.	The offender had 5 previous convictions for 7 offences. On 20 June 2016, he pleaded guilty to offences of conspiracy to supply heroin and conspiracy to supply cocaine between 8 January 2016 and 5 March 2016 (when aged 19). He was sentenced to 28 months’ detention in a Young Offender Institution. On 30 September 2016, he pleaded guilty to possessing heroin with intent to supply and possessing cocaine with intent to supply on 4 June 2015 (when aged 18). He was sentenced to 18 months’ detention in a Young Offender Institution. On 27 September 2017, he pleaded guilty to the offence (already mentioned) of being in possession in prison of a specified article on 19 May 2017 (when aged 20). For that he received a sentence of 8 weeks’ imprisonment suspended for 12 months.
5.	A plea and trial preparation hearing took place on 19 January 2018. The Offender pleaded not guilty to Count 1 but indicated that he was guilty of simple possession. He pleaded not guilty to Count 2. The case was listed for trial on 21 February 2018, whereupon the prosecution sought an adjournment as the Offender had indicated that he was putting the Crown to strict proof in relation to the nature of the substance. During the course of that application and without any prompting from counsel, the learned judge asked defence counsel if the Offender was a drug addict and the judge was told by counsel that the Offender was ‘on the road’. The learned judge said if the Offender was ‘an addict he should be on DRR’. He encouraged the Offender to seek a Goodyear indication and the matter was adjourned for a short time to enable defence counsel to take instructions. During that adjournment, prosecution counsel informed defence counsel that no basis of plea would be agreed. After a short adjournment, the Offender returned to Court and through his counsel requested a Goodyear indication. Counsel informed the Court that the Offender was a heroin ‘user’ and that he was dealing in drugs to fund his habit. No written basis of plea was submitted by the defence. The learned judge indicated that the maximum sentence, on a plea of guilty, would be a suspended sentence with a drug rehabilitation requirement. Thereafter, the Offender pleaded guilty to Count 1. At the hearing of 21 February 2018 the learned judge had been made aware of the Offender’s previous convictions. The prosecution’s case was that the Offender was a street supplier of heroin and that the offence fell within Category 3 of the Guidelines. The Offender’s representative did not disagree. Following the plea of guilty, sentencing was adjourned to 28 February 2018 and the Offender was released on bail.
6.	Two pre-sentence reports were then obtained. The first report recited the court’s Goodyear indication that a suspended sentence was appropriate. The reporting officer said that the offender was suitable for such a sentence and might be suitable for a Drug Rehabilitation Requirement, subject to assessment by the treatment provider. The second report stated that a favourable assessment had been given and made detailed proposals as to the precise form of orders that would need to be made. The penultimate paragraph of the second report was in these terms: 
“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.”
7.	At the sentencing hearing on 28 February, the defence submitted a Note and made submissions to the effect that the offender had problems with drug addiction and had a history of mental problems. The offending was said to have been committed to fund the offender’s drug habit. There was a written basis of plea, which was not accepted by the Crown which said this: 
“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.”
8.	In passing sentence the learned judge said that he hoped those concerned with the offender within the justice system had got to the offender in time before he became a “confirmed addict”. He noted the offender’s youth and expressed the view that he was otherwise a “decent” person. He said it was important to keep him off drugs. 
9.	The judge referred to a passage on p. 12 of the Sentencing Guideline concerning this offence which reads as follows: 
“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.”
10.	We should also refer to the Supplementary Report from the Probation Service, prepared in cases of this type, where the Attorney-General challenges sentences of the present character as being unduly lenient. This report before us, dated 16 April 2018, reports favourably on the offender’s engagement with the requirements of the judge’s order. While clearly there has only been some two months since the offender’s initial appointment, the reporting officer concludes in these terms: 
“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. 
11.	On behalf of the Solicitor-General it is submitted that the aggravating features of the offence were: a) previous convictions; b) the offender was on licence at the time of the offence; and c) the attempt to conceal evidence. As for mitigation, there was: a) the plea of guilty; b) the offending was said to be to feed a drugs habit; c) there was demonstration of steps taken to address addiction by way of participation in a recovery plan and work with the substance abuse team. There was also the probation service’s view that the offender had motivation to succeed and had potential for it.
12.	In oral submissions, Mr Lloyd for the Solicitor-General provided more detail as to the background to the previous convictions. The first offence was committed on 4 June 2015 when the offender offered to supply drugs to an undercover police officer. He was found to have £181 in his possession. The other offences occurred between January 2016 and March 2016 when the offender was involved in a conspiracy to supply heroin and crack cocaine. These were, submitted Mr Lloyd, significant previous convictions. 
13.	Mr Missouri said that these offences were essentially part of one course of conduct and should not be seen as a developed career in drug dealing.
14.	The offence was, and is accepted to be, a category 3 offence, in which the offender had a significant role. For such an offence the Guideline identifies a starting point of 4 years and 6 months imprisonment, with a sentencing range of between 3 years 6 months and 7 years. The Solicitor-General draws attention to the fact that the offender was close to coming within the minimum sentence provisions for a third drug trafficking offence imposed by s.110 of the PCC(S)A 2000. Had that been so then a minimum sentence of 7 years imprisonment would have been mandatory, subject to the statutory exception. He submitted that while the minimum sentence provisions did not apply here, the facts were sufficiently close to those provisions applying for the court to gauge the seriousness of the index offence in the light of the previous convictions. 
15.	It was, therefore, submitted that the sentence imposed was unduly lenient, as would have been the sentence of 16 months to which the judge referred in his sentencing remarks. The 18 month suspended sentence, even had it not been suspended would also have been too lenient, it was said. Mr Lloyd’s submission continued to make the point that, in the Solicitor-General’s view, even if the judge had brought the sentence down to the bottom of the range for this category of offence, the resulting sentence would have been no lower than 3 years and 6 months which would not have permitted its suspension. It is further noted by the Solicitor-General, in his submissions in the reference, that the plea of guilty was only entered on the day of trial and that, accordingly, any discount for the plea could only have been limited.
16.	For the offender it is accepted that the sentence was lenient, but it is submitted that it was not unduly so. Mr Missouri for the offender has referred us to s. 125(1) of the Coroners and Justice Act 2009 which provides as follows:
“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) [2010] 2 Cr. App. R (S) at page 524 (less conveniently sometimes cited as case 81 in those reports).
17.	In that case, the court (in a judgment given by Hughes LJ, as V-P of the CACD, as he then was) set out the normal course of sentence for street-dealers in class A drugs at that time as involving immediate custodial sentences (after trial) of between 5 and 6 years. However, in addressing the sentence passed in that case (which was a suspended sentence of 12 months) Hughes LJ said this (at paras. 12 and 13): 
“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) [2003] EWCA Crim. 3514; [2004] 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.
18.	Mr Lloyd argued that we have to bear in mind that the circumstances of that case were very particular. Further, this court has said that pre-Guideline cases have only very limited assistance: see Dyer [2014] 2 Cr. App. R (S) at page 61, para. 8, per Sir Brian Leveson P.
19.	We also referred counsel to Attorney-General’s Reference No.64 of 2003 (Boujettif & anor.) [2003] EWCA Crim 3514 (cited by Hughes LJ in Matheson) in which Rose V-P gave guidance as to some of the relevant factors for a court in considering whether it was in the public interest to make a Drug Treatment and Testing Order (“DTTO”) (as the order was then called). At paragraph 14 of the judgment, the Vice-President said this: 
“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.”
20.	Mr Lloyd submitted that these two cases now had to be seen in the light of the words of the Sentencing Guideline which the judge quoted in his sentencing remarks. He argued that any sentence within the bracket envisaged by the Guideline for this category of offence, (i.e. 3 ½ to 7 years’ custody) could not be considered to be “a short or moderate length custodial sentence”. Thus, the leeway offered in the two older cases could not now apply.
21.	Mr Missouri countered that the Guideline document was no doubt intended to be reflective of existing authority represented by the decisions in the two cases mentioned. He noted that Hughes LJ’s remarks were made in the context of offences of the very type with which we are concerned in this case: i.e. street dealing in Class A drugs, for which, in that case, it was said the sentence would otherwise have been in the order of 4 ½ to 5 ½ years’ imprisonment (after credit for a late plea). Hughes LJ was recognising, it was argued, that there could be cases, of which this was one, in which Crown Court judges must be allowed on occasion to impose a sentence which seems to them to be more likely than prison to result in a favourable rehabilitation of the offender.
22.	Mr Missouri submitted that the offender’s conduct since arrest has demonstrated a will to free himself from drugs and that was the material upon which the judge acted. Further, the subsequent probation report and the successful first court review indicates that, where prison has not worked in the offender’s case, it seems that the present sentence has every prospect of working. Mr Missouri added that this very experienced judge had the advantage of seeing and hearing from the offender and his mother and had the benefit at sentence, if not when he gave the Goodyear indication (without, we would add, a formal basis of plea), of the reports from two experienced probation officers. 
23.	We carefully considered those submissions. In the end, we decided that this was a case where the sentence imposed was unduly lenient largely for the reasons presented by Mr Lloyd which we have endeavoured to summarise above. In saying this, we do not intend to indicate what is or is not a “short or moderate length custodial sentence”. That will depend on all the circumstances of each case. The usual sentence in this case, bearing in mind all the features of the material before the judge, would undoubtedly have been one well within the bracket envisaged by the Guideline for category 3 (significant role), i.e. 3 ½ to 7 years, with a starting point of 4 ½ years. The material before the judge, supporting the course he took, was also difficult to fit precisely within the rubric from the Guideline which the judge quoted. However, we considered that, in this exceptional case and with the benefit of the material now available, in addition to that which was before the judge, this court can say that it would not now be in the interests of justice to return this offender to prison and that some flexibility can, therefore, be given to the rigour of the Guideline within the limits prescribed by s. 125(1) of the 2009 Act. It will remain a very rare case indeed in which such a course can be taken. If a judge fails to take such a course in any future case, it should not be thought that the refusal to do so presents a viable ground of appeal. In the present case, if this offender strays from the course that this sentence has opened up for him, he will undoubtedly return to serve the custodial sentence which the judge generously suspended.
24.	For these reasons, we decided not to interfere with the sentence passed by Judge Burrell QC in this case, notwithstanding our finding that the sentence was in fact unduly lenient.