England and Wales High Court (Administrative Court) Decisions

1. THE LORD CHIEF JUSTICE: This appellant arrived in this country from California in order to impregnate sheets of paper or cardboard with LSD for sale in the United Kingdom. It appears that he had arranged for a number of sheets of paper to be copied for him in California and to be sent to a house in St John's Wood to which he had access. He received the paper there. He also collected from that address implements, in particular a mangle, for the purposes of this operation. Watched by the police he took the paper and the mangle to a flat which he had rented. He thereupon set about acquiring locally certain implements needed for the purpose of impregnating the sheets and also made use of implements which he had brought with him. Such implements included trays in which the sheets were soaked, a perforating board for dividing the sheets of paper or cardboard into squares, measuring jugs for mixing the solution and vodka for use as a solvent. The evidence shows that the appellant successfully impregnated at least 319 sheets and began to perforate them for sale in this country as squares approximately 6 mm in dimension. The perforation was intended to divide each sheet into about 900 such squares which would give a total of 287,000 dosage units of marketable LSD. He was arrested as he left the flat carrying a bin liner of refuse from the manufacturing process in one hand and the keys of the flat in the other. The evidence was that this was one of the largest seizures LSD for many years.

2. On analysis it was found that the average LSD content of each of these squares (approximately one-quarter inch squares) was 31 microgrammes. Immediately after his arrest in this country the appellant's home address in California was also searched. Items were found there which provided evidence of a comparable operation in that country. There were very similar scales in use, an identical perforating board, sheets of paper, some of them printed with the same design as here and a certain amount of literature relating to drugs. The evidence shows that the perforating boards found in California and here were not only identical in detail but inscribed with the same handwriting.

3. The appellant initially refused to answer questions when arrested on 31 August 1995. His passport showed seven short trips to the United Kingdom and Peru in the preceding few years and his bank account showed several credits.

4. He was charged on indictment with possession of a controlled drug of Class A with intent to supply it to another in contravention of section 5(3) of the Misuse of Drugs Act 1971. At his trial he pleaded guilty. A Newton hearing was held with reference to the number of dosage units which the appellant intended to produce. The Newton hearing was also directed to deciding the street retail value of those dosage units. The evidence was to the effect that about 8 grammes of LSD had been used to impregnate the sheets. The judge concluded that the 319 sheets were to be divided, as we have described, into one-quarter inch squares. He accepted the Crown's case that these would amount to 287,000 dosage units, but rounded that figure down for the purpose of his calculation to 280,000 units. He heard evidence concerning the retail sale price for sales of this kind in this country and was told that various figures were obtainable in various places and at different times. He took a price of £3.75 per square and thus estimated the projected sale receipts in the sum of just over £1m, reached by multiplying 280,000 by £3.75.

5. When passing sentence on the appellant the judge repeated these conclusions and pointed out that, although a tiny quantity of LSD was involved, such a quantity when prepared in a solution went a very long way in terms of producing commercial quantities of individual doses of the substance. He described this as "a very highly organised and professional enterprise" and as a "massive drugs operation". He was of opinion that the appellant's assets had not been traced. He said in the course of his sentencing remarks that he gave the appellant credit for his plea of guilty, but went on to acknowledge that that credit must also allow for the fact that the evidence of his involvement in the operation was overwhelming. He took account of the points urged upon him by counsel then representing the appellant. At page 3E of his sentencing remarks he referred to a submission made on behalf of the appellant that all he was to get out of his involvement was his air fare to London and US $4,000 and rejected that explanation as being wholly unrealistic. He said:

6. The judge then referred to a number of what he described as "very impressive written references" which had been received in relation to the appellant and took those into account in the appellant's favour, while observing that there was plainly another side to the appellant's personality. He found it difficult to escape the conclusion that the appellant had been leading two separate lives; many good people who knew the appellant and had spoken on his behalf had no idea about his occupation as a drug dealer. The judge then referred to the appellant's various medical afflictions and observed that that would be a matter for the Home Secretary to take into account as time went by. He concluded his remarks by imposing a sentence of 14 years' imprisonment. Against that sentence the appellant now appeals by leave of the single judge.

7. We have been asked in the course of this appeal to give guidance on the appropriate levels of sentencing in LSD cases. This is something which this court expressly declined to do in R v Aranguren and others (1995) 16 Cr App R(S) 211, at page 216. The court did, however, revise the previous guidelines on levels of sentencing in cases relating to the unlawful importation of heroin and cocaine so as to link the level of sentencing to the quantity of those drugs imported, at 100% purity as opposed to the street market value which had been the basis of earlier sentencing decisions. We propose to accede to the invitation to give some guidance in this field.

8. We should, however, make two preliminary observations. It has been suggested in the course of evidence that there is a distinction to be drawn between LSD on the one hand and heroin and cocaine on the other, on the basis that LSD is a less harmful and noxious drug. We think it necessary to remind ourselves of what was said by Lord Lane CJ in R v Martinez (1984) 6 Cr App R(S) 364, at 365, where he said:

9. We adopt that observation. It is not in our judgment for this court to draw distinctions between different class A drugs. Parliament has included them all in the same category. If it is to be argued that LSD should be placed in some separate and lesser category or not treated as a controlled drug at all, then that is in our judgment a political, not a legal, argument.

10. We have, however, in the course of this hearing heard expert and helpful evidence from Dr Jansen and Professor Nichols as to the doses of LSD which cause harm and the apparent effect of different doses on those who use it. It is plain from this evidence that in the 1960's and 1970's LSD was regularly used in much larger quantities than is usual today. Dr Jansen testified that it was at about a dose of 50 microgrammes that most people start to begin to experience hallucinatory effects. That, in his judgment, allowed for individual differences the approximate dose at which such experiences were likely to begin. Professor Nichols gave similar evidence, that hallucinogenic effects in his experience were liable to begin with a dose of 50-plus microgrammes.

11. The second general point which we would make is this. The present case is one of possession with intent to supply and not, like most of the guideline cases, unlawful importation. As Lord Lane CJ said in R v Aramah (1982) 4 Cr App R(S) 407, at page 409:

12. From that passage it seems clear that possession with intent to supply may well attract a shorter sentence than importation. It all depends on the degree of involvement, the amount of trafficking and the value of the drugs, which should now be understood to be the quantity of the drugs being handled.

13. We turn therefore to the major question which has been argued in the course of this appeal: What should be treated as the primary pointer towards the appropriate level of sentence for unlawfully importing LSD? Three answers have been canvassed in the materials and in argument before us. First, retail value; secondly, the quantity of the drug; and thirdly, the number of dosage units. The first of these candidates is one which all parties have rejected, and so do we. The arguments against the use of retail value as determining length of sentence were persuasively deployed in R v Aranguren , and those arguments apply here also. It may in some cases be appropriate for evidence of the approximate street value of the drugs to be adduced, since this gives some idea of the scale of the operation involved. But we share the view expressed in Aranguren and accepted by the parties to this appeal, that value should not be the primary guide towards the level of sentence.

14. The second candidate, quantity, has very much stronger attractions. If the quantity is known, then it is possible to work out, taking an average dose of 50 microgrammes or even 100 microgrammes, how many dosage units can be produced. This is indeed the approach for which the appellant argues, taking as the bench mark doses of 100 microgrammes or alternatively 50 microgrammes as the standard dosage unit. The difficulty is that it is not always easy to calculate with any degree of precision the total amount of material involved. There are problems of extracting the material from the paper which has soaked it up and there are furthermore problems of degradation. The greatest problem however is to achieve a precise figure. That would require, unless reliance were only placed on samples, a very extensive exercise of testing all the sheets which are the subject of seizure. In the present case there is some doubt as to whether the total material involved is 8 or 9 or 10 grammes. On one view the difference between those figures is small, but on the other hand the quantities involved in LSD consumption are minute, so that 1 gramme makes a considerable difference in the number of dosage units. We do not regard the whole quantity as in any sense an irrelevant measure; and in certain forms of LSD it seems to us much the most helpful and readily usable measure.

15. However, where one is dealing with impregnated squares, it seems to us on balance that the third measure, the number of impregnated squares usually of approximately one-quarter inch in size, provides the best guide. These are dosage units where squares have been produced or are to be produced. The number of squares are usually the most reliable indicator of the size of the operation. It is, of course, true that some squares may be highly impregnated and so may contain high quantities of LSD, whereas others may be less heavily impregnated and contain a smaller quantity of LSD. There is however evidence that it is now the fashion for dosage units to approximate to 50 microgrammes and since any effect is unlikely to be detectable very much below 25 microgrammes a dose of 50 microgrammes is accepted as being a realistic dose. The practical evidence suggests that in the market place this is the average level of dose as judged by the seizures which are made. Of course, one would not expect the squares to be impregnated with exactly 50 microgrammes. There must be a plus or minus. If, however, one takes the number of squares as the primary starting point, then allowance must be made appropriately upwards or downwards if there is convincing evidence that the squares are significantly more or less heavily impregnated. By "significantly" we have in mind something in excess of 10 microgrammes one way or the other. It is therefore possible, where weaker dosage units are intentionally produced, to adjust the scale accordingly, while bearing in mind that in such a situation those who produce these squares may well have done so quite deliberately in order to maximise their profits. Since the object of the legislation is to deter the use of unlawful drugs and strip dealers of their profits, it seems to us appropriate that the penalties should be related to the number of dosage units put, or to be put, on the market, subject to such adjustment as may be appropriate in the light of a significant deviation from the standard dose. The sentence therefore should ordinarily be based on the number of squares to be marketed, assuming an LSD content of about 50 microgrammes of pure LSD per square, plus or minus about 10 microgrammes, but with discretion in the sentencer to vary the sentence upwards or downwards where there is any more significant variation.

16. Our approach to levels of sentence should be broadly in accordance with the trend of previous authority, of which we have reminded ourselves. The first case which calls for mention is R v Bilinski (1988) 9 Cr App R(S) 360. In that case the appellant had pleaded guilty to the importation of 3 kilogrammes of heroin which were stated to have a street value of £600,000. The court indicated that where the value of the drugs was £100,000 plus, the sentence should ordinarily be of the order of 10 years' plus; where it was £1m plus, the sentence should be of the order of 14 years' plus.

17. As already mentioned, in R v Aranguren (1995) 16 Cr App R(S) 211, the court was dealing with the importation of heroin and cocaine and made the change from a financial to a quantity based test. The appropriate level in the judgment of the court for an offence involving 500 grammes of 100 per cent purity was 10 years' imprisonment plus, and for 5 kilogrammes at 100 per cent purity, 14 years' plus.

18. Lastly, we have been referred to two unreported decisions. First, in R v Finch (CA 4.6.96) the applicant had pleaded guilty to the possession of LSD with intent, and had been sentenced to six years' imprisonment. The quantity involved was 10.2 grammes, which was treated as the equivalent of 100,000 dosage units, assuming a dosage unit of 100 microgrammes. The street value of the LSD was judged to be somewhere between £300,000 and a very much larger figure. Leave to appeal against sentence was refused. We derive little help from that authority, since we cannot know what the court would have regarded as the appropriate sentence.

19. The parties have helpfully and thoughtfully offered competing suggestions as to the manner in which the guidelines should in this case be expressed. Having had the benefit of considered evidence from Mrs Connors, we accept the suggestion which she makes and we shall not therefore give the detail of the competing guidelines. It is therefore our judgment that with a quantity of 25,000 or more one-quarter inch squares or dosage units, the sentence should in the ordinary case be one of 10 years' plus. In the case of 250,000 or more one-quarter inch squares or doses, the sentence should ordinarily be one of 14 years' plus. In each case we assume, as already indicated, that the dosage unit is approximately 50 microgramme content pure LSD, and adjustment may be needed where it is shown to vary significantly from that figure. Where the seizure is of tablets or crystal in a form which permits a precise amount to be ascertained readily and easily, there should in our judgment be no problem in calculating the number of 50 microgramme dosage units which could be produced from that quantity so as to achieve equivalence with the sentences which we have indicated.

20. We would wish to make clear that this is, like other cases on the subject, a guideline and not a straitjacket. We appreciate that cases will arise in which sentencers may for good reason vary the level of sentence appropriately and we accept that sentencers must retain a measure of flexibility to do justice in individual cases.

21. With that general approach we turn to the specific grounds which have been urged on behalf of the appellant. First, it is said that the trial judge, although indicating that he would give credit to the appellant for his plea, failed to do so. We see force in that submission. The sentence of 14 years' on a plea of guilty equates to perhaps 16 years' or longer in a contested hearing and, as we shall indicate, we would not consider such sentence to be justified.

22. Secondly, it is urged on his behalf that the judge should not have treated him as a dealer. It suffices to say that the evidence of his activities in California in our judgment abundantly justified that conclusion.

23. Thirdly, it is submitted that the judge was wrong to reject the appellant's account of his involvement and the evidence of his reward without a Newton hearing. The judge, as is plain from the transcript, was willing to conduct a Newton hearing on any point said to be in dispute. He was not invited to hold a Newton hearing on this point and was fully entitled to reject the account which he had been given.

24. Fourthly, it is argued that the judge was wrong to reject the evidence put before him of the appellant's character. It is plain from the transcript that the judge did not do so. He accepted that there were a number of witnesses who spoke extremely highly of the appellant, but nonetheless accepted, as he was bound to, the evidence of his involvement in this very serious crime.

25. Fifthly, it is urged that the judge should have given greater weight to the appellant's medical condition, but in our judgment the judge dealt with that appropriately.

26. Overall it is submitted on behalf of the appellant that the sentence was in all the circumstances excessive, equating, as we have indicated, to some 16 years' or more on a contested hearing. We remind ourselves that this was not a case of importation but of possession with intent. On the other hand, it is plain that the appellant was very heavily involved and was not playing a subordinate part. We do however feel it right to take account of the fact, in accordance with the guidance we have given, that the average LSD content of these squares was some 31 microgrammes, which falls substantially below the 50 microgramme average content which we have treated as the standard dosage unit: i.e. the standard LSD content per one-quarter inch square. That does in our judgment support the contention that the number of squares should be notionally reduced to reflect the reduced content of LSD. There should further in our judgment be a reduction to reflect the appellant's plea of guilty, for which the judge perhaps gave inadequate credit. Had this case been the subject of a contested hearing before the trial court, and had the appellant been convicted, then the appropriate sentence would in our judgment have been one of 12 or 13 years' imprisonment. As it is, on a plea of guilty, we consider that the appropriate sentence would have been one of 10 years' imprisonment.

27. We accordingly allow this appeal against sentence, quash the sentence of 14 years' imprisonment and substitute a sentence of 10 years' imprisonment. To that extent the appeal is allowed.

28. MR FORTSON: I am much obliged. May I raise one other matter? Your Lordship will have seen in the skeleton that I refer to the confiscation order. That is not the subject of a ground of appeal, and I am mindful of the judgment in Dore which was given by your Lordship. The learned judge determined the benefit figure by referring to the drugs actually seized on this occasion.

29. THE LORD CHIEF JUSTICE: To the retail value of the drugs.

30. MR FORTSON: Exactly. Although on the one hand it might be said that what I am about to embark upon is academic, I dispute the confiscation order. I would invite the court to determine the benefit in a sum agreed in the figure of £200,000.

31. THE LORD CHIEF JUSTICE: Is that an agreed sum?

32. THE LORD CHIEF JUSTICE: We have had the opportunity for discussion and this is our joint view, that the judge did not adopt the proper approach. We were slightly baffled as to how we would get to the right figures now, but if they are agreed, the seizure was way below that. It is academic, subject to any decision of the court in the future so far as section 16 of the Act is concerned.

33. MR FORTSON: My Lord, one cannot go above the ceiling figure fixed.

34. THE LORD CHIEF JUSTICE: Supposing a Swiss bank account with a lot of money comes to light, one could not exceed the £200,000?

35. THE LORD CHIEF JUSTICE: We have discussed this at length. I think the appropriate thing, Mr Fortson, is that you had better amend your notice of appeal so that it reads the benefit made by the appellant is in the agreed figure of £200,000.

36. THE LORD CHIEF JUSTICE: Do you want an order for legal aid taxation?

37. THE LORD CHIEF JUSTICE: We shall make that order. We are grateful to you and to Miss Kamill for the help which we have been given.