England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		13th April 2018

LORD JUSTICE HICKINBOTTOM: I shall ask the Recorder of Leeds to give the judgment of the court.

THE RECORDER OF LEEDS:

1. On 19^th September 2017 the applicant pleaded guilty before the Suffolk Magistrates' Court to one offence of supplying a controlled drug of Class A, contrary to section 4(3) of the Misuse of Drugs Act 1971. He was committed for sentence to the Crown Court at Ipswich, where he appeared for sentence on 19^th October 2017. The hearing was before His Honour Judge Levett, who was the judge assigned to deal with all cases in the two police operations known as "Invite" and "Electricity". This case arose from that combined operation.
2. The applicant appeared jointly with Mark McCullum and John Moir, who had also pleaded guilty before the justices to two charges of supplying Class A drugs. All three defendants were sentenced to three years' imprisonment.
3. The applicant's application for leave to appeal against sentence has been referred to the full court by the single judge. Moir did not appeal against his sentence, and McCullum has not renewed his application after refusal by the single judge. In referring the applicant's application to this court, the single judge said this:

"In view of his age and vulnerability and the judge's refusal to order a pre-sentence report, I consider it appropriate to direct that a report be obtained and the application for permission referred to the full court. The applicant should not hold high hopes that his sentence will be reduced on appeal."

4. The applicant and his co-defendants were arrested following what is often referred to as a "test purchase operation", where undercover officers are deployed to identify those involved in the supply of Class A drugs by purchasing drugs from them. Undercover officer "Jai" had identified the two co-defendants who supplied him with drugs on several occasions in June and July 2017.
5. On 10^th July, Jai met Moir and together they contacted the applicant using the officer's phone. The applicant came to meet them on his bike and dealt three wraps of heroin to the officer for £30.
6. On 18^th July, Moir again met "Jai", who told him that he was not able to obtain drugs from his usual source. Again, Moir phoned the applicant who directed them where to go so that two wraps of heroin could be supplied to them.
7. When he was eventually arrested, the applicant admitted that he was dealing for a drugs group. He said that during July he had dealt five to ten deals on a quiet day and 20 to 30 on a busy day.
8. The applicant is now aged 22, having been born on 1^st November 1995. He had appeared before the courts on eighteen previous occasions for 32 offences between 2007 and 2016. He had not previously been sentenced to custody. In 2016 he was dealt with for driving offences and breach of a court order; in 2014 and 2015 for theft, attempted non-dwelling burglary, possessing Class B drugs and breach of court orders; in 2013 for possession of Class A drugs; and in 2012 for possession of Class B drugs. His other offences, for all of which he received non-custodial sentences, included criminal damage, arson and having an article with a blade. We note that in 2013 he had been made the subject of a community order with a drug rehabilitation requirement. He had failed to comply with that order subsequently.
9. When passing sentence, the judge referred to his previous convictions. He said that he had pleaded guilty to one charge of supplying Class A drugs to the undercover officer, but it was over a period of time between 1^st July and 31^st July. Although he was part of a group, he set the scene, which told the court more about the scale of the organisation. He said that during July on bad days he would be dealing about five to ten deals; on good days he would do between 20 and 30 deals. The court was sure that that did not happen every day, but it did put into context why this was a significant role where the applicant had awareness and understanding of the scale of the operation and the way in which the operation was set up. The applicant was a dealer with a phone. He had associations with people higher up the chain. He had a ready made market and it seemed that he provided the continuation of a syndicate that was able to enjoy the benefits of supplying a ready-made group of individuals with Class A drugs. He knew the scale. The significant role of the supplier would mean that sentence after trial would have been four and a half years' imprisonment. After credit for the guilty plea, he was sentenced to three years' imprisonment.
10. The judge had been asked to adjourn matters so that a pre-sentence report could be obtained. The judge rejected the need for a pre-sentence report. He said that if the applicant was a self-harmer, as confirmed by his mother, a note should be made on the prison file. As he had been in custody from 19^th September to 19^th October, the prison authorities would be well aware of that and of his vulnerabilities if it were the case. The court rejected the fact that he had acted under duress. He had the wherewithal to resist the pressure, but fell into temptation.
11. The complaint made by Miss Donovan on behalf of the applicant is that at the hearing before the Crown Court she did not have a full copy of the record of transcribed interview. The MG5 summarised the interview with the applicant in this way:

"Interviewed on 18^th September during which he fully admitted supplying Class A drugs on behalf of the Kappo dealer group in order to pay off a £1,000 debt. He would deal anywhere between five to 30 wraps, dependent on how busy he was throughout the month of July. [The applicant] admitted to buying his own heroin in bulk and cutting this up at home to help manage his habit."

Miss Donovan's instructions were that the applicant had acted under duress because of threats made to him and his family if he did not work for the Kappo Gang. It was on that basis that she asked for the adjournment so that a pre-sentence report could be obtained and she would also be able to see the full extent of the interview and the extent of the duress described by the applicant. She wished to argue, as she did argue, that the extent of the duress would reduce the applicant's culpability to a lesser role with a lower starting point. Those matters were considered by the judge and he rejected her submissions, as he was entitled to do on all the evidence before him.

12. This referral, however, does raise issues in relation to the appropriate obtaining of a pre-sentence report. The Senior Presiding Judge has issued guidance on that topic in connection with better case management. Furthermore, there are now specific sections in the Criminal Practice Direction dealing with this matter. The guidance in relation to cases where a guilty plea is entered in the magistrates' court and the case committed for sentence to the Crown Court says as follows:

"If a guilty plea is entered or indicated prior to the case being sent to the Crown Court, the magistrates will consider whether a pre-sentence report is necessary (Crim PD 3A.8) and will request the preparation of a pre-sentence report only if satisfied that:

there is a realistic alternative to a custodial sentence;

the defendant may satisfy the criteria for classification as a dangerous offender;

there is some other appropriate reason for doing so."

The guidance then goes on to say:

"When in doubt as to whether the case requires a pre-sentence report, the justices should decline to order the report. They should direct the defence practitioner to make an application to the Crown Court setting out the reason why they consider one to be necessary. The application will be considered administratively by a Crown Court Judge who will direct the preparation of a pre-sentence report if he/she thinks it appropriate to do so."

Further guidance indicates that:

"It will usually be appropriate to order a report and in some of these cases a recent report may well be sufficient where:

the defendant is 17 and under;

the defendant is under 21 and is a first time offender/has not served a prison sentence;

the defendant falls to be assessed for "dangerousness";

there is a realistic alternative to a custodial sentence (check the Sentencing Guidelines)."

It then lists a number of offences where "it will not usually be appropriate to order a report". The list includes the offence of supplying Class A drugs.

13. Against that background we note that the justices did not order a pre-sentence report. No application seems to have been made to the court for such a report prior to the hearing. In our judgment, if such an application had been made, it is almost certain that it would have been refused.
14. It is important to remember that it is the role of the litigator and the advocate to put together the mitigation by gathering all the information that the defendant can provide about his or her relevant background, their involvement in the offence, matters that will mitigate the offence and anything else they consider will assist the judge in the sentencing exercise. It is not the role of the Probation Service to do that work. Statements of what a defendant says about his background carry no more weight because they are in a pre-sentence report than if they are put forward by an advocate. The role of the Probation Service is to offer a realistic alternative to custody to deal with issues of dangerousness or to deal with something specific within their area of expertise.
15. Before the court can address alternatives to custody, it needs to be persuaded that custody can be avoided. If this were, as the judge found, a category 3 "significant" role case then, even if with full credit for a guilty plea, the inevitable prison sentence will not be one that can be suspended. Consequently, unpaid work, curfews and other punitive community elements will never fall to be considered. An alternative approach might occur "where the defendant is dependent 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 2003 can be a proper alternative to a short or moderate length custodial sentence". That is set out in the definitive guidelines, at step 2, on page 12. The key to that, however, is that "there is a sufficient prospect of success".
16. It was not being suggested at the time of sentence that there was evidence to support any application for a drug rehabilitation requirement based community order. We have already noted that in 2013 the applicant was the subject of such an order with which he failed to comply. Indeed, the report that has now been obtained states that the applicant now says that "had he received a community sentence at the previous hearing, he considers the prospect of his complying with it might have been poor simply due to the extent of his drug addiction at the time". His failure to comply with other community orders and his continuing to use controlled dugs, even though receiving methadone through a Drug Treatment Service, are further evidence that there was no basis upon which a judge would have been persuaded to consider such a community order as an alternative to custody.
17. The report we now have indicates that, whilst he has been in custody, the applicant has completed a methadone reduction programme; that he is now free of all drugs; and that it is his hope and intention to remain drug-free when released.
18. However, the question for us is whether the sentence imposed by the judge at the time was, arguably, wrong in principle or manifestly excessive. We are satisfied that in all the circumstances the judge was right to move to sentence that day and not to adjourn for the preparation of a pre-sentence report. We are equally satisfied – and we note that there is nothing in the pre-appeal report provided to us that indicates otherwise – that this case properly fell into category 3 street dealing and that the applicant's role was a significant one, notwithstanding his relationship to the Kappo Gang.
19. The judge might have gone upward from that starting point on account of the applicant's previous convictions, but he did not do so; and he allowed full credit for the guilty plea tendered in the magistrates' court.
20. In all these circumstances we are satisfied that the grounds advanced are not arguable. Consequently, this application for leave to appeal against sentence is refused.
____________________________________