No: 200406436/A5 
Neutral Citation Number: [2005] EWCA Crim 198
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Tuesday, 25th January 2005
 
B E F O R E:

LORD JUSTICE KENNEDY

MR JUSTICE TOULSON 

MR JUSTICE BEAN 

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REFERENCE BY THE ATTORNEY GENERAL UNDER 
S.36 CRIMINAL JUSTICE ACT 1988 

ATTORNEY-GENERAL's REFERENCE NO 138 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
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MISS Z JOHNSON appeared on behalf of the ATTORNEY GENERAL
MISS A NIXON appeared on behalf of the OFFENDER
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J U D G M E N T 

1.	LORD JUSTICE KENNEDY:  Her Majesty's Attorney-General seeks the leave of this Court, to refer to the Court sentences which he considers to be unduly lenient. We grant leave.
2.	The offender's name is Shane White.  He was born on 28th July 1968, so he is now 36 years of age.
3.	On 19th July 2004, in the Crown Court at Worcester, he pleaded guilty at a plea and directions hearing to nine offences, set out in two indictments, all but one of the offences relating to the supply or possession of drugs.  That one offence alleged conspiracy to commit indecency with a child.  There were three other offences on a second indictment to be tried.  The offender was jointly indicted with a man named Andrew Graham Hutchinson and the alleged victim of all four offences on that indictment was a man named Jason Cutter.
4.	On 20th September 2004, the first day of the trial, and before the jury were sworn, the offender pleaded guilty to count 1 on that indictment, a count of false imprisonment of Jason Cutter. Hutchinson pleaded guilty to false imprisonment and assault occasioning actual bodily harm and, consequently, there was no trial in relation to that matter.  Hutchinson received a total sentence of 10 months' imprisonment.  That meant that, so far as the offender was concerned, there were ten offences to be dealt with.  On 18th October 2004 he was sentenced to a total of 5 years' imprisonment.
5.	We will look more closely, later, at how that sentence was achieved. But we turn, first, to the underlying facts.  On 3rd March 2004 police officers went to the home of the offender in Hereford to execute a search warrant.  It was heavily secured. Inside there was bank of closed circuit television monitors. The offender was in the flat with his girlfriend, Lita Brennan, and in the light of what was found in the flat they were both arrested.  Firstly, there was in the flat the usual equipment for drug dealing.  There were, for example, scales, cellophane, all the materials that a drug dealer would require.  There was also £915 in cash and there were quantities of four types of unlawful drug.  There was 9.7 grams of heroin, 0.04 grams of crack cocaine, 18.4 grams of cannabis and 204.61 grams of amphetamine.  In separate counts, dealing with the different drugs, the offender was charged with possessing each of those drugs with intent to supply.
6.	In a safe, in the living room, there were 15 video cassette tapes, a digital camera, £117 in cash, and 10 tablets of various colours.  Most of the tapes showed the offender using, preparing and supplying named drugs, and in one instance, confronting a defaulting customer. So there was clear evidence of drugs having been supplied over an extended period. But two of the tapes were of a different character.  On one tape Lita Brennan, on 22nd February 2004, could be seen smoking a crack pipe.  She was positioned on the bed, naked from the waist downwards, with her legs open to expose her vagina.  Outside there was a 10 year old boy, JW, being made to wait.  She asked the offender if she was to make him, as she put it, "come in his pants", to which the offender replied "yes".  She then said she knew she was a paedophile and she did not care.  The offender told her to masturbate, and the boy was then let in.  He was instructed to count loose coins, while she masturbated and the offender smoked a crack pipe.  After about half-an-hour the boy was asked if he had a girlfriend, and whether he had touched 'a fanny'.  He was then invited to touch her private parts but declined.  Eventually he was given £11 and told to come back next week when he could do it again.  It was possible to date the incident by reference to a football match which was on the television in the background.  That incident showed, the prosecution contended, a clear conspiracy to commit an act of gross indecency with a child.
7.	Another video-tape related to the false imprisonment of Jason Cutter.  He could be seen on the video-tape being accused of tampering with the offender's drugs.  He denied the allegation, but could be seen to be frightened. He was then given a crack pipe and made to smoke it.  Later, he could be seen naked in a corner of the room with a towel on his head.
8.	Cutter was therefore interviewed by the police. He lived in a flat which he said was used by the offender to store power drills and drugs.  He said that on 1st December 2003 the offender arrived unannounced and bolted the door with a metal pole.  He accused Cutter of stealing crack cocaine from an amount hidden under the bed.  Over a period over an hour-and-a-half the offender verbally abused and threatened Cutter.  A man named Hutchinson then arrived, having been summoned by the offender.  Cutter was forced to strip and was menaced and humiliated by the two men.  The offender then ordered Hutchinson to hit Cutter, which he eventually did, hitting Cutter once, very hard, on the back of the head. The offender then put a crash helmet on Cutter's head and the two men eventually left.  Cutter was too scared to report the matter to the police.
9.	The offender was interviewed on a number of occasions.  On 4th March 2004, immediately after the arrival of the police, he denied that he was a drug dealer and claimed that all the drugs found were for his own personal use. He described the security at his flat as a deterrent against the police and vandals.  He was questioned as to how he could afford his habit and for that matter the amount that had been expended on fortifications and was not able to give any satisfactory answer in relation to questioning, save to say that his brother had withdrawn £15,000 from a bank 12 months earlier and given to him as a gift.
10.	Interviewed on 21st April, he was shown the various videos and arrested on suspicion of supplying crack cocaine and conspiracy to supply Class A drugs. Having seen the tapes, the offender admitted supplying amphetamine.  He was asked about the video of gross indecency with a child.  He said that the camera had been concealed because it was his and his girlfriend's intention to flirt with the child's father.  They wanted to capture any indecency involving him on camera.  In fact the boy's father remained outside mending a lorry.  We are told this morning by Miss Nixon, who appeared on behalf of the offender, that that boy's father has been visiting the offender and his girlfriend in prison and assuring them that what they did to his son apparently did no lasting damage.
11.	The offender admitted to the police that had happened was not normal but he denied that he had any paedophile tendencies. He was interviewed yet again on the following day, 22nd April, and admitted to selling crack cocaine for the last year as well as amphetamine.  He admitted to being at the top of the ladder for supply and that he had people below him. He had two runners to whom he would supply money and vehicles. Beneath them in the chain of supply were street dealers who were not paid. He said that he had used 1 to 3 grammes of heroin a day.
12.	Asked about the false imprisonment, he said that he thought that Cutter had stolen some of his tools and drugs. He denied making Cutter strip or assaulting him or making him smoke a pipe or locking him in the flat and putting a towel on his head. He said the recording was unintentional and that he did not intend to humiliate Cutter.  One of the aggravating features of the offending, both in relation to Cutter and in relation to the boy, as Miss Johnson, for the Attorney-General, has pointed out is that those humiliations were recorded on camera.
13.	The offender suggested to the police that Cutter had only complained in order to claim compensation.  When in due course he pleaded guilty, in the circumstances to which we have already referred, he submitted a written basis of plea, in which there appeared the following: he used no violence whatsoever on Jason Cutter.  Any violence was perpetrated by Andrew Hutchinson. He believed Jason Cutter had stolen some drugs so the incident took place in an attempt to frighten him into confessing to theft.  He was not responsible for placing the towel on Jason Cutter's head. No incident occurred in which Jason Cutter ran at the window wearing a motorcycle helmet.
14.	The offender has a large number of previous convictions, including four convictions for possessing a controlled drug and convictions for violence, but no convictions of a sexual nature.
15.	A pre-sentence report was prepared, in which the probation officer assessed the offender as presenting a high risk of re-conviction for a sexual or violent offence.  That officer also concluded that the sadistic and humiliating behaviour as demonstrated in the count of false imprisonment was a matter of concern, and recommended that the court should consider imposing an extended sentence under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000 for a period of 3 years supervision on licence.  She also alerted the court to its powers to impose a Sex Offender Prevention order under the Sexual Offenders Act 2003.
16.	There are, as Miss Johnson submits, aggravating features in relation to this matter.  The drug dealing was over an extended period. The offender, as he plainly admitted, was near or at the top of the supply chain in his locality.  There was sadistic and humiliating behaviour used to maintain that position and there was the sexual activity with the child.
17.	As Miss Nixon points out there are mitigating matters: the offender is entitled to credit for his pleas of guilty, those in relation to the drug offending and the child being tendered at the first reasonable opportunity and he is also entitled to have it recognised that he, himself, had a disturbed background, that he has taken steps, since he has been in custody to try to deal with his drug addiction.  She submits that although the sentence was overall lenient, it was not unduly lenient.
18.	In our judgment, the sentence was unduly lenient.  The sentence in respect of specific offending was, if anything, lenient. But what is a matter of particular concern to this Court is that the separate sentences imposed in respect of the conduct towards Jason Cutter and towards the boy were ordered to be served concurrently.  We see no justification for that course in this case.
19.	We turn to the sentences themselves.  There were four counts of supplying drugs, relating to the activities of the previous year. They were counts 1, 2 and 4 in the first indictment.  In respect of the supply of heroin, and the supply of cocaine, counts 1 and 2, the sentences imposed were sentence of 5 years' imprisonment.  In respect of the supply of amphetamine, the sentence was one of 3 years' imprisonment.  There were then two counts of supplying drugs or possessing drugs with intent to supply, arising out of the drugs which were discovered at the time of the police visit on 3rd March.  They were counts 6, possession with intent to supply heroin, in respect of which the sentence was 5 years' imprisonment, and count 7, possession with intent to supply amphetamine in respect of which the sentence was 3 years' imprisonment.
20.	There were then two counts of simple possession, in other words possession of drugs on the face of it for his own use, again arising out of what was discovered on 3rd March.  They were counts 8, possession of crack cocaine, and in respect of which the sentence was 18 months' imprisonment, and count 9, possession of cannabis resin, in respect of which the sentence was 15 months' imprisonment.
21.	Count 10 in that first indictment was the count which related to the boy, conspiracy to commit an act of gross indecency with that boy.  In respect of that offence, committed on 22nd February 2004, the sentence was one of 15 months' imprisonment.
22.	Turning to the second indictment, the indictment which related to Jason Cutter, count 1 in that indictment related to the false imprisonment of Jason Cutter on 1st December 2003.  The sentence in respect of that false imprisonment was 18 months' imprisonment, and count 2 on that indictment related to the supply to Jason Cutter of crack cocaine, which he was obliged to smoke on that day and the sentence in respect of that offence was one of 2 years' imprisonment.  As we have indicated, the learned judge ordered that all sentences should be served concurrently.  In our judgment, that was the wrong approach.
23.	We do not propose to interfere with the sentences imposed in respect of the drugs offences, that is to say, counts 1, 2, 4, 6, 7, 8 and 9, in the first indictment, and count 2 in the second indictment.  The sentence imposed was, if anything, lenient.  We have been referred, among other cases to the authority of this Court in the case of R v Dhajit [1999] 2 Cr App R(S) 142.  That is a convenient starting point.  That authority indicates that, in a contested case, involving a low level retailer, with no previous convictions, on conviction for an offence where he has been involved in supplying drugs simply to feed his own habit, but the drugs were of Class A, the court should be thinking in terms of a sentence of 6 years' imprisonment.
24.	This case, so far as the drug activity considered on its own is concerned, was plainly more serious than that.  This was drug activity which extended, as Miss Johnson pointed out, over an extended period.  Furthermore, it was profitable. That can be seen from the investment made by the offender in his security. He accepted that he was at the top of the supply chain.  Plainly, had the drug offences been contested, they would have called for a sentence significantly in excess of 6 years.
25.	But the sentencing judge did have to have regard to the sentence which he was going to impose overall.  In those circumstances, it seems to us that it would have been justifiable, in this particular case, bearing in mind the ultimate issue of totality, for the sentencing judge in respect of the drugs offences to have limited himself, as he did, to a sentence of 5 years' imprisonment.
26.	But the offence of false imprisonment of Jason Cutter was not an integral part of small scale supplying of drugs.  It was an additional offence, arising out of drug dealing, but serious and severe and, even though the subject matter of a belated plea, it called for a significant additional sentence.  In our judgment, the sentence of 18 months' imprisonment which was imposed in respect of that offending was plainly too low.  The minimum sentence which should have been imposed in respect of count 1 of the second indictment, in our judgment, was one of two-and-a-half years' imprisonment consecutive to the sentences imposed in respect of the drugs offending, making thus far a total of seven-and-a-half years' imprisonment.
27.	Furthermore, we take the view that the offending in relation to the boy was serious.  A grave offence of its kind.  It was quite clearly deliberate. The offenders knew very well that the person outside was the boy, and he was being deliberately targeted.  He was obliged to watch one of them taking drugs, if not both, and the woman masturbating herself.  He was clearly embarrassed by what he saw.  He was then, after half-an-hour, given a significant amount of money. All that happened was recorded on film, and bearing in mind that he was invited to return the following week, it is difficult to escape the conclusion he was being groomed.
28.	In all those circumstances, it seems to us that, in respect of that offence, the sentence which was imposed of 15 months' imprisonment was plainly too low.  We consider that the minimum sentence which should have been imposed in respect of count 10 in the first indictment was a sentence of 3 years' imprisonment, consecutive to the sentences imposed in respect of all other counts in both indictments, making a total, at first instance, of 10-and-a-half years' imprisonment.
29.	Of course, as Miss Nixon has rightly pointed out, in this Court we have to take account of the fact that the offender is being sentenced for a second time.  For that reason, and for that reason only, we order that the sentence in respect of the false imprisonment of Jason Cutter be concurrent with the sentences imposed in respect of the drugs offences.  So that the total sentence becomes one of 5 years in respect of the drugs offences, two-and-a-half years in respect of the false imprisonment, that being count 1 in the second indictment, to be served concurrently with the sentences in respect of the drugs offences, and a consecutive sentence of 3 years, making a total of 8 years' imprisonment in all.  That sentence to rank as if imposed by the sentencing judge.