England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 6 March 2018

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1. MRS JUSTICE LANG: The appellant appeals against the sentence passed in the Crown Court at Stafford on 26th July 2017 with the leave of the single judge.
2. He pleaded guilty to the offence of conspiracy to supply a Class A controlled drug, contrary to section 1(1) of the Criminal Law Act with two named co-defendants, Rahouff and Riva, who also pleaded guilty. The appellant was sentenced to 6 years 3 months' imprisonment, Rahouff was sentenced to 5 years' imprisonment and Riva 19 months.
3. The facts may be briefly stated. On 13th August 2015 police officers observed the appellant driving Riva to a public house in Tutbury where Rahouff was waiting in a taxi. Riva took a bag of cocaine to the taxi and she and Rahouff drove off in the taxi with the appellant following in his car. Soon afterwards Riva exited the taxi and was picked up by the appellant. When police stopped the taxi soon afterwards Rahouff was in possession of a black plastic bag holding large blocks of compressed powder, later identified as 284 grams of cocaine, with a purity of 72%. Once cut down for street use its value would be approximately £20,000.
4. The appellant's fingerprints were found on the inside of the black bag. The appellant's name and number was stored on Rahouff's mobile telephone and there were records of contact between Rahouff and the appellant as they were travelling towards the meeting point on 13th August.
5. Later the same day police attended Rahouff's home in Burton where they found drug paraphernalia, a box containing 11 milligrams of cocaine, a plastic bag containing 175 grams of cocaine and a mixing agent and a spoon with 95 milligrams of cocaine and a mixing agent on it.
6. The appellant and Riva were arrested on 21st September 2015.

Grounds of Appeal

7. The grounds of appeal are:

(1) that the judge erred in deciding the purity of the cocaine (72%) was an aggravating feature.

(2) The judge ought not to have increased his sentence because of the appellant's previous convictions and breach of licence and

(3) The sentence was manifestly excessive.

Conclusions

8. The agreed sentencing guideline for the appellant was that he played a significant role and the harm was in category 3. Under category 3, the starting point for the indicative amount of 150 grams of cocaine is 4 years 6 months custody with a range of 3 years 6 months to 7 years custody. A greater or lesser quantity may increase or decrease the starting point. The guidelines explain that purity is not taken into account in identifying the offence category. However, "high purity" is listed in the guidelines as an aggravating factor.
9. In his sentencing remarks the judge said:

"Cocaine because of its production process can never be pure but purity as high as this, over 70 per cent, puts Jamil Hussain close to the original supply and that, as I understand it, is why high purity is set out in the guidelines as an aggravating factor."

10. Counsel submitted that the judge was out of date and ought not to have decided that cocaine of 077% amounted to high purity without evidence. He said that street purity levels of over 70% were routine in some segments of the market. He referred us to a report from the Advisory Council for the Misuse of Drugs Act which stated at paragraph 33:

"The Home Affairs Committee inquiry into the cocaine trade noted the emergence of a two-tier market, whereby the majority of street-level seizures in 2008/09 were of 10% purity or less, but with some containing as little as 5%, with lower-quality cocaine having become available to a new market of consumers previously unable to afford the drug (Home Affairs

Committee, 2010). As noted above, this is highly likely to be a consequence of and a contributory factor to the observed increase in the prevalence of use and the changed demographic profile of users. As shown in Figure 6, the existence of a two-tier market is supported by more recent analysis of cocaine powder seized within the 'middle market' which found that the purity level for most seizures was either at or above 70% or below

30%, with levels around 15–20% being the most common and as many as one in ten being lower than 10% purity (NCA, 2014 – see Figure 6)."

11. Counsel made a similar submission to the sentencing judge but the judge disagreed, referring to the Court of Appeal decision in R v Shezad and Vogli [2014] EWCA Crim 1637, in which the court upheld his significant increase in the starting point, on the basis that the purity levels of the cocaine were between 73% and 81%, which in the judge's experience were exceptionally high. Rafferty LJ referred to his wide experience at paragraph 28 and said his approach was not open to criticism in any way.
12. The guidelines do not provide any guidance as to what amounts to high purity and in those circumstances the sentencing judge must make his own assessment whether or not there is evidence available to him. The judge is entitled to rely on his expertise and knowledge acquired from trying drugs cases especially in his region. Regional variation was a point made by the Crown in this case.
13. In this case the judge's assessment that 72% was high purity cannot be criticised as unreasonable. The evidence from the Advisory Council acknowledged that purity levels around 15% - 20% were most common in seizures. Here there was evidence from the raid at Rahouff's home that the cocaine was being mixed with cutting agents such as Levamisole, thus reducing its purity before sale. In opening, the Crown invited the judge to proceed on the basis that the cocaine found in the taxi would be adulterated and cut down for the street. In our view, the judge was entitled to conclude that the appellant was selling high purity blocks of cocaine at 72% and thus it could be inferred he was close to the source.
14. In our judgment, the appellant's previous conviction was a significant aggravating factor. On 5th August 2009 he was sentenced to a total of 14 years and 4 months' imprisonment comprising 100 months, (that is a little over 8 years) for conspiracy to supply cocaine and 72 months for causing grievous bodily harm with intent. He was a principal dealer of cocaine in South Staffordshire for several years and used systematically violence with weapons to ensure compliance from his henchmen.
15. The appellant was released from prison in April 2015 on licence until 2022. The judge found the commission of this offence so soon after his release was a seriously aggravating factor. We agree.
16. Following his arrest on 22nd September 2015 the appellant was remanded in custody for this offence, but because he was recalled on licence for the earlier offence the 22 months between arrest and trial did not count towards his sentence unless the court so ordered.
17. In R v Kerrigan [2014] EWCA Crim 2348, the Court of Appeal held that a trial judge should only exercise his discretion to permit time to count where there were exceptional reasons to do so, for example, excessive delay.
18. In this case the judge analysed the reasons for the delay in detail at 4H - 6G of the transcript. His conclusion was that the appellant was responsible for the delay by failure to file his defence statement, by seeking adjournments of trial dates, raising abuse of process arguments and by only entering a plea of guilty on 24th July 2017, the date of the re-fixed trial. Rahouff and Riva had pleaded guilty in December 2017 and another co-defendant had been tried and acquitted in January 2017.
19. In the light of this history counsel concedes that the judge cannot be criticised for declining to exercise his discretion to allow time spent on remand to count towards his sentence. However, counsel now seeks to achieve the same result by a different route by submitting that the judge was not entitled to increase his sentence to reflect the aggravating factors of his previous conviction and defending whilst on licence, as well as refusing to allow his time on remand to count towards his sentence because this amounts to double jeopardy. In our judgment, this submission is misconceived.
20. The appellant was sentenced to 14 years and 4 months in August 2009, 544 days spent in custody were ordered to count towards that sentence. On our calculation the term expires in mid-2022. He was released in 2015 on condition that he would be subject to recall if he re-offended. After his arrest for this offence in September 2015 he was recalled on licence for the 2009 offence. He was serving a sentence imposed in 2009 throughout the period from his arrest to his conviction for this offence.
21. In our judgment, there is no double jeopardy. The sentences for the 2009 offence and the 2017 offence are separate and he is liable to serve both. He benefits from the fact that the 2017 sentence runs at the same time as the licence recall for the 2009 offence.
22. In assessing the seriousness of the 2017 offence the judge was required to treat the conviction for an identical offence in 2009 as an aggravating factor, by virtue of section 143(2) of the Criminal Justice Act 2003. This statutory provision is expressly incorporated into the Sentencing Guideline on drug offences as a statutory aggravating factor which increases seriousness. Other non-statutory aggravating factors in the sentencing guideline include offences committed on licence. The Sentencing Guideline Overarching Principles: Seriousness explains at paragraph 1.20 that an offence committed on licence is one of a number of aggravating factors which indicates a higher than usual level of culpability on the part of the offender. Thus the judge was entitled, and indeed required, to have regard to the 2009 offence and the breach of licence when assessing seriousness and culpability for the purpose of sentencing the appellant for the 2017 offence.
23. The judge found that the sentence would have been 7 years after a trial which was at the top of the guideline. In our judgment, the judge was entitled to increase the sentence from the starting point of 4 years 6 months to reflect the (i) the quantity of cocaine (248 grams) which was in excess of the indicative quantity of 150 grams (ii) the aggravating factor of high purity cocaine placing the appellant close to the original supply (iii) the aggravating factor of the serious previous conviction for an identical offence (iv) the aggravating factor of committing the offence after being released from prison on licence 4 months earlier. The 10% discount which was given for his late plea of guilty was the most that could be awarded.
24. Taking all these factors into account we do not consider that the sentence of 6 years 3 months imprisonment was manifestly excessive. For these reasons we dismiss the appeal.

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