England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		No: 201800364 A2 Royal Courts of Justice Strand London, WC2A 2LL
		22 May 2018

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

1. MR JUSTICE MARTIN SPENCER: On 12 January 2018, the applicant was sentenced to a term of 2 years' imprisonment at Manchester Crown Court by His Honour Judge Leeming for two offences of supplying a class A controlled drug, contrary to section 4(1) of the Misuse of Drugs Act 1971.
2. The applicant had pleaded guilty before the Magistrates' Court at the first reasonable opportunity and had been committed to the Crown Court for sentence. He was thus entitled to the full discount of one third to take account of his guilty plea.
3. The arrest and conviction of the applicant arose out of Operation Tightrope, which was a police operation to investigate the supply of drugs in the Whalley Range area of Manchester during 2017.
4. On 5 May 2017, an undercover officer attended the Grandale Street area, where he saw the applicant in a wheelchair being pushed by another male. The officer approached the applicant to ask about the supply of drugs. He was asked to take over the pushing of the applicant's wheelchair and was directed to an address on Shotton Walk. The officer was told to wait around the corner whilst the applicant attended an address there. He overheard the applicant asking a female for cocaine and heroin. The applicant was told that she would have no cocaine for 30 minutes. The applicant then returned to the officer and gave him his money back. The officer observed the applicant had two small pieces of white substance in his hands. After a further conversation, the applicant agreed to obtain heroin for the officer from another source in return for £3. The applicant, the officer and another male then went to Claremont Road and the applicant was supplied with a single wrap of heroin of 0.19 grams with a purity of 14 per cent, which he then passed on to the officer.
5. The second offence occurred on 21 June 2017, when the same undercover officer was on Thurlow Street. He spoke to a male and asked for the drug dealer known as "Spar". The male then directed the officer to the applicant. The officer asked the applicant for the number of "Spar" but the applicant offered instead to call another dealer called "Locks". He gave that dealer's number to the officer, who called the number and then handed the telephone to the applicant. The officer heard the applicant order a wrap of cocaine and a wrap of heroin. After a couple more calls, they were directed to a car park behind a block of flats on Thurlow Street. A number of males arrived and the applicant went over to them. He then returned to the officer and indicated to him he could have some of the drugs that he had ordered. He pulled some powder out of a bag to give to the officer. The deal was 0.6 grams of heroin with the purity of 55 per cent.
6. At the end of Operation Tightrope the applicant was arrested and interviewed on 16 November 2017. He could not recall the incidents in question.
7. In sentencing the applicant, the learned judge referred to the applicant's previous convictions, observing that he is a prolific and persistent offender with 91 convictions for 222 offences since August 1986, when he was aged 15, for which he had been dealt with in a variety of ways.
8. The learned judge observed that the applicant is no stranger to custody and had a number of drug offences recorded against him, including two offences of being concerned in an offer to supply cocaine, and a further offence of being concerned in an offer to supply heroin, for which he was dealt with in 2012 and made the subject of a community order for 12 months. However, that order failed to work, his offending continued and he has a history of non-compliance with court orders and sentences generally. The learned judge observed:

"It seems that the majority of your offending has involved acquisitive crime to fund your drug addiction."

9. The learned judge took full account of the pre-sentence report prepared on the applicant's behalf, which referred to his life having been blighted by his drugs addiction and to the applicant having been a user for 30 years with concurrent alcohol dependence and total immersion at times in the drug culture. The applicant told the probation officer that he had acted as a go-between between the officer and the drug dealers higher up the chain. His leg had been amputated in 2011 as a result of damage caused by the injection of drugs.
10. The learned judge recorded that Mr Longstaff, who represented the applicant in the court below and again before us today, had invited him to sentence the applicant on the basis that this was activity at the lowest level of the guideline, "that you were a go-between, or a conduit, between the officer and the dealer, this was not direct selling on your part". Mr Longstaff has repeated that submission before us. Having been reminded by Mr Longstaff of the low value of the drugs in question and their low purity, the judge remarked:

"But this is street dealing and so the quantity and the value are secondary factors."

11. The judge sentenced the applicant by reference to the definitive guideline for drug offences, categorising the offence as category 3, lesser role, with a starting point of three years' custody and a sentencing range of between two and four and a half years' imprisonment.
12. Taking the aggravating factors into account, those being the applicant's previous convictions, the impact on the community and the fact that these being two separate transactions 6 weeks apart did not represent isolated behaviour, and taking also the mitigating factors into account, the learned judge stated that the least sentence he could impose would be one of 3 years' imprisonment as a starting point, to which he applied the full one-third discount for plea, resulting in the sentence of 2 years' imprisonment, which he imposed concurrently on each count.
13. Mr Longstaff, on behalf of the applicant, both in his initial application for permission to appeal and again before us today, has argued that the learned judge erred in categorising this case as one of street dealing and has therefore misapplied the guideline. He submits that the relevant category ought to have been a category 4 offence with a lesser role with a lower starting point and a lower sentencing rage.
14. He further, as his second submission, submitted that the starting point of 3 years' imprisonment is manifestly excessive, arguing that the learned judge paid insufficient regard to the mitigating features in the case.
15. Finally, he submitted that the sentence of imprisonment should not have been immediate but should have been suspended.
16. In regard to both the second and third submissions, he submitted that the impact of the sentence was disproportionately great on this offender, who was trying to address his addiction and for whom accommodation has been kept open pending this appeal.
17. In refusing permission to appeal, the single judge gave the following reasons:

"I do not accept that the judge fell into error into his categorisation of the two offences as street dealing within the guideline (Level) 3. However, even if he did and he should have categorised the offences as level 4 his starting point sentence of 3 years after a trial was not manifestly excessive given (a) that sentence is the upper limit for level 4 and (b) the Applicant's previous convictions were very serious aggravating features.

I also am of the view that for the reasons so cogently expressed by the judge he was entitled to conclude that the sentence imposed should not be suspended. The applicant's history of non-compliance with non-custodial orders was highly material to this issue and, to repeat, the judge was entitled to reach the view that it was not appropriate to suspend the sentence."

18. This application to renew the application for permission to appeal was received 44 days out of time. However, the applicant's solicitors have provided to the court a letter dated 8 March 2018 which they say was sent to the Criminal Appeal Office with the signed renewal notice attached and that letter would only have been 2 days out of time. However, it was never received by the Criminal Appeal Office.
19. We have no reason to believe that the letter of 8 March was not genuinely sent and somehow lost and therefore being only 2 days out of time we grant an extension of time to renew this application for permission to appeal.
20. However, despite Mr Longstaff's attractive argument before us today on behalf of the applicant, for which we are extremely grateful to him, we consider that the single judge was correct for the reasons that he stated. In our judgment, this was clearly street dealing meriting categorisation of these offences as category 3. In any event, we also agree with the single judge that the aggravating factors justified placing these offences at the top end of category 4 and we consider that it is not arguable that the sentence was manifestly excessive.
21. We consider the sentence of immediate imprisonment of 2 years was wholly justified and for those reasons we refuse permission to appeal.
22. THE VICE PRESIDENT: Thank you, Mr Longstaff. Giving credit to your submissions, we have decided not to make a loss of time order in this case.

Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400

Email: Rcj@epiqglobal.co.uk