[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Attorney General's Reference No. 11 of 2006 [2006] EWCA Crim 856 (21 March 2006) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2006/856.html Cite as: [2006] EWCA Crim 856

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		21st March 2006

Tuesday, 21^st March 2006

THE LORD CHIEF JUSTICE:

Introduction

1. This is an application by the Attorney General pursuant to section 36 of the Criminal Justice Act 1988 for leave to refer the offender's sentence to this court on the ground that it was unduly lenient. At the outset of the hearing we granted leave.

The Facts

2. The offender, Thomas Scarth, is 19 years old, having been born on 2 April 1986. On 3 January 2006, before His Honour Judge Whitburn QC, sitting at Teesside Crown Court, the offender pleaded guilty to a single count alleging possession, on 8 July 2005, of 6.05 grammes of diamorphine (heroin) with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971. A pre-sentence report was available. The offender was sentenced to a suspended sentence order consisting of 12 months' detention suspended for 18 months, the period of the order; 100 hours' unpaid work for the community; and 18 months' supervision with a condition of attendance at a "Think First" programme.
3. An order was made for forfeiture and destruction of the drug.
4. The offender had been remanded in custody for 112 days before sentence. Outstanding community orders were revoked.
5. The following facts are agreed. The offender lives in Redcar, where local street drug dealers in the area were targeted by the police in Operation Berwick. The offender was under surveillance on 8 July 2005 when he left a house in Blayberry Close and went to Burnmoor Close nearby where he stopped at his car, a white Ford Escort Cabriolet. He opened the boot and put a piece of cloth onto the floor. He lay on top of this and pulled himself under the vehicle. He appeared to dislodge or remove something from the exhaust area and then took a small white article which he put up under the rear bumper of the car. He then got up from under the car and left the area.
6. The police went to the car and found two packages of clingfilm-covered small white wraps hidden under the bumper. Inside the glove compartment the police found a small plastic bag containing pieces of paper with the same mobile telephone number on each. As the search was taking place the offender approached the police and informed them that it was his car. He had bought it a couple of months earlier and had been living in it. The car was removed by the police.
7. The £5 wraps are known locally in the area as "five pound bags" and are a popular weight for purchase by users. The possession of 83 such deals indicates regular dealing to using addicts themselves or on to small dealers for further distribution. The slips of paper found in the glove compartment, on which the offender's telephone number had been written, are consistent with the type of "business cards" used by drug dealers to be handed out to new or prospective customers.
8. Analysis of the contents of the wraps indicated the presence of diamorphine (heroin), although the purity of the drug was not established.
9. The offender was not arrested on 8 July, but a search of his girlfriend's home where he had been staying took place on 13 September 2005, during which he was detained. A machete, two daggers, a BB gun with two empty magazines, a cross-bow and four cross-bow bolts, a small silver wrap of a brown substance and £158 in cash were found at the address. The offender was arrested on the same day and found to be in possession of a further £70.
10. In interview he told the police that he had no idea who put the heroin under his car. He was not a heroin addict and did not take the drug. He was unemployed and in receipt of £89.00 per fortnight as social security. He was shown the pieces of paper found in the glove compartment and confirmed that he had owned a mobile telephone at the time, although he denied that the number on the pieces of paper was his number. He could not remember the number he was using at the time. He also denied that the weapons found in the house where he was arrested were there to provide protection or a means of intimidating anyone in connection with the supply of drugs. He admitted that he had used the BB gun in the past to fire at targets. On being shown the video-recorded events of 8 July he made no reply to the questions he was asked.
11. He was charged on 13 September 2005 and remained in custody until he was committed for trial to the Crown Court where he appeared on 3 January 2006 for a pleas and directions hearing, having already indicated the likelihood of a guilty plea.
12. Since October 2004 he has been convicted of driving offences, failing to surrender to custody and theft of a vehicle. He was dealt with by way of fines and disqualification until 25 November 2004, when he was made the subject of a Community Punishment Order of 100 hours. On 13 June 2005, three-and-a-half weeks before the instant offence, he was convicted of possession of heroin and fined £100. He appeared before the magistrates' court again the next day for breaching the Community Punishment Order, which he had not completed, and a further offence of taking a motor vehicle without consent. No action was taken on the breach, the order was to continue, and a Community Rehabilitation Order for 18 months was made in respect of the new offence. The offender was therefore subject to these orders on 8 July 2005 at the time of the offence with which we are concerned.

The Imposition of the Sentence

13. The judge had before him a pre-sentence report prepared by a probation officer. After dealing with the offender's previous convictions and his family background, which untypically was happy and secure, she assessed the risk of the offender re-offending as high. She then made the following recommendation:

"15. Mr Scarth appears before the court today charged with possession with intent to supply Class A heroin. He is aware that today's offence will be viewed seriously by the courts and that custody is a possible outcome. He tells me that his involvement in the current offence was as a result of pressure; he states that he was very frightened about the potential consequences of not following instructions and felt at the time as though he did not have a choice, although in hindsight he was able to identify other choices he could have made at the time.

16. With regard to a suitable disposal it is my assessment that although a custodial sentence would serve to punish Mr Scarth and restrict his liberty, it would do little to address the specific issues connected to his offending behaviour.

17. I have also considered the imposition of a curfew requirement, however feel that Mr Scarth's accommodation status precludes him from this. His mother has offered him a place with her. However, she is in the process of moving and this has not been established as long-term accommodation.

18. In considering all of the relevant factors in this case I am asking the court to follow an unusual course of action with my preferred proposal being a suspended sentence order with the following requirements:

(a) Unpaid work requirement of 100 hours ....

(b) A supervision requirement for a period of 18 months ....

(c) A programme requirement whereby Mr Scarth would attend the Think First programme ....

19. Such a disposal would serve to punish Mr Scarth and allow him the opportunity to develop his thinking skills with a view of increasing his understanding of the consequences of his offending behaviour upon others. He will also be given support to develop appropriate problem solving and coping skills to minimise his risk of re-offending."

14. When Mr Lamb rose to mitigate on behalf of the offender he remarked that he accepted that custody was inevitable. At this the judge interrupted. The following exchange took place:

"JUDGE WHITBURN: Well now, is it? Look at the recent authorities. This is the first time he has been arrested, charged and pleaded guilty at the first opportunity, admittedly in circumstances where he had little else than to plead guilty. It is the first time though, is it not? I ignore and dismiss from my mind all the specious pleading that is contained in his version of the events. It simply does not match with the facts. The fact that he put his own mobile number on shows that he was in for repeat business, so on and so forth. It is rubbish, but on the other hand there is a recent authority, is there not, which says that street level dealing, which this is, for an addict, which he is or was, is to be treated more leniently than it has been treated in the past. Would you agree?

MR LAMB: Yes, I would.

JUDGE WHITBURN: Is it Alonzo or there is .... a name somewhat similar to that.

MR LAMB: That is the name of the case, your Honour, yes.

JUDGE WHITBURN: So where does that put it on the bracket? He has been in custody, has he not?

MR LAMB: He has ben in custody since his arrest, as I understand it.

JUDGE WHITBURN: And how long has he been in custody? Here, it is being handed to me. The number of days on remand cumulative seem to be 112.

....

JUDGE WHITBURN: .... so what are we looking at? Let us be realistic. The jails are full to overflowing. The recommendation is a sensible one.

MR LAMB: Well, if your Honour is persuaded by the contents of the report, then I would not seek to dissuade you from it.

JUDGE WHITBURN: You do not wish to stand between your lay client and his liberty, Mr Lamb?

MR LAMB: No, your Honour. I will sit down quick while I am ahead of you."

15. The judge then proceeded to sentence the offender in the following terms:

".... you are only 19 years of age and you are dealing in heroin. You were dealing in heroin within a month of pleading guilty to an offence of possession of Class A. You knew exactly what you were doing and I ignore completely your specious special reasoning to the probation officer when you were being interviewed in respect of this particular matter.

You have, however, pleaded guilty. You are a young man and we are urged not to imprison young men for offences of this nature if they are on a comparatively minor scale.

I have come to the view that you are a street dealer or were a street dealer in July of last year and, as I keep emphasising, you have pleaded guilty and you have spent some 112 days on remand and, bearing that in mind, I consider that the appropriate punishment is that which is recommended in the pre-sentence report.

I am going to impose a suspended sentence. I have to do it, I think, in weeks, do I not? Well, in fact I can do it on a year, as a year, and I think that would be appropriate in your particular case, so it is a one year suspended sentence. It means it does not come into effect unless you commit some further offence during the period of this particular community order that I make.

You will perform unpaid work of 100 yours. You will be supervised for a period of 18 months. Therefore, the whole order remains as an 18 month order and you will therefore also attend the Think First programme which is prescribed under the relevant section of the Criminal Justice Act 2003.

Do not think this is a let-off. It is not. You commit any further offence during that period of 18 months or thereabouts, you will be punished for that offence and the twelve months which I have imposed on you, the one years sentence, you will serve thereafter."

16. This was a sentencing exercise to which the provisions of the Criminal Justice Act 2003 applied. Under section 189(1) of that Act the maximum sentence of imprisonment that can be suspended is 51 weeks. Thus the judge passed a suspended sentence that exceeded his jurisdiction by one week's detention. It is the submission of the Attorney General, represented by Miss Cheema, that the offence called for a substantially longer period of detention and one that could not be suspended.

Prison Capacity

17. The judge's comment that the jails are full to overflowing received widespread publicity. It is not clear to us that there was a factual basis for that comment or that this consideration in fact influenced the sentence that the judge imposed, but we propose to comment on the impact of prison overcrowding on the sentencer's task.
18. Section 142 of the Criminal Justice Act requires any sentencer to have regard to the following purposes of sentencing:

"(a) the punishment of offenders,

(b) the punishment of crime (including its reduction by deterrence),

(c) the reform and rehabilitation of offenders,

(d) the protection of the public, and

(e) the making of reparation by offenders to persons affected by their offences."

Section 152(2) provides that a court must not pass a custodial sentence unless it is of the opinion that the offence was so serious that neither a fine alone nor a community sentence can be justified. Where a custodial sentence is imposed, section 153(2) requires that it shall be for the shortest term that is commensurate with the seriousness of the offence.

19. When deciding whether, having regard to the seriousness of the offence, a community sentence can be justified, the sentencer will have regard to the importance, on the facts of the particular case, of imposing a sentence which will encourage reformation and rehabilitation of the offender and thereby the reduction of crime.
20. When prisons are overcrowded the result is to hinder or prevent the valuable work of rehabilitation that a prison should normally provide. The fact that prisons are overcrowded may, for this reason, be a relevant factor where the sentencer's decision is on the cusp, so that there is a real issue as to whether a community sentence can be justified rather than a custodial sentence. Prison overcrowding will also make it all the more important that the sentencer comply with the requirements of sections 152 and 153 of the Criminal Justice Act which we have quoted above.
21. There is no novelty about these propositions, any more than there is, unfortunately, in a situation where prisons are overcrowded. As long ago as 1980 Lord Lane CJ, when giving the judgment of this court in R v Bibi (1980) 71 Cr App R 160, said:

"This case opens up wider horizons because it is no secret that our prisons at the moment are dangerously overcrowded. So much so that sentencing courts must be particularly careful to examine each case to ensure, if an immediate custodial sentence is necessary, that the sentence is as short as possible, consistent only with the duty to protect the interests of the public and to punish and deter the criminal."

22. In R v Kefford [2002] EWCA Crim 519, [2002] 2 Cr App R(S) 106, Lord Woolf CJ, sitting in this court with Rose LJ, its Vice-President, and with Judge LJ, included these observations in the judgment of the court:

"4. The overcrowding of the prison system is not only a matter for grave concern for the Prison Service, it is also a matter of grave concern for the criminal justice system as a whole. Prison sentences are imposed by the courts normally for three purposes: to punish the offender concerned, to deter other offenders and to stop the offender committing further offences in the future. The ability of the Prison Service to tackle a prisoner's offending behaviour and so reduce reoffending is adversely affected if a prison is overcrowded. The ability of the Prison Service to service the courts is impeded if prisons are overcrowded, since the Prison Service is unable to ensure that prisoners arrive at courts at the appropriate time. In the past attempts have been made to relieve overcrowding by using police cells but this is a wholly unsatisfactory remedy. Apart from being extremely expensive, it prevents the police performing their duties in tackling crime.

....

6. Those who are responsible for imposing sentences have to take into account the impact on the prison system of the number of prisoners the prison estate is being required to accommodate at the present time. The courts are not responsible for providing prison places. That is the responsibility of the government. However, the courts must accept the realities of the situation. Providing a new prison takes a substantial period of time and in the present situation it is of the greatest importance to the criminal justice system as a whole and the public who depend upon the criminal justice system for their protection against crime, that only those who need to be sent to prison are sent to prison and that they are not sent to prison for any longer than is necessary."

The following passage is particularly germane in the present case:

"7. Nothing that we say in this judgment is intended to deter courts from sending to prison for the appropriate period those who commit offences involving violence or intimidation or other grave crimes."

23. As we shall explain, on the facts of this case the question of whether or not the prisons are overcrowded has no relevance.
24. It is apparent from his remarks that the judge sought to follow the approach of this court in R v Afonso and others [2004] EWCA Crim 2342, [2005] 1 Cr App R(S) 560. At the start of the judgment in that case, the Vice-President said:

"1. .... These appeals provide an opportunity for this court to give guidance in relation to the sentencing of a particular group of offenders within the category of retail suppliers of Class A drugs identified in Djahit [1999] 2 Cr App R(S) 142 and Twisse [2001] 2 Cr App R(S) 37. We take into account the guidance given in relation to the making of drug treatment and testing orders in Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R(S) 106; [2004] Crim LR 241.

2. Nothing which we say is intended to affect the level of sentence indicated by Djahit and Twisse for offenders, whether or not themselves addicts, who, for largely commercial motives, stock and repeatedly supply to drug users small quantities of Class A drugs and, as was pointed out in those authorities, as well as other authorities, the scale and nature of the dealing are important when deciding the levels of sentence. Nor does anything we say call into question the propriety of the levels of sentence for the supply of drugs in the circumstances dealt with in McKeown and Others (Attorney-General's References 13 to 18 of 2004) [2004] EWCA Crim 1885....

3. But there is a group of offenders who supply Class A drugs for whom we believe that the level of sentence indicated by Djahit and Twisse, namely in the region of six years following a trial, is disproportionately high and we think some review is called for. These are the offenders who are out-of-work drug addicts, whose motive is solely to finance the feeding of their own addiction, who hold no stock of drugs and who are shown to have made a few retail supplies of the drug to which they are addicted to undercover police officers only. An unemployed addict has, in practical terms, three means of financing his or her addiction -- prostitution, theft or supplying others and sentencers should recognise that, in consequence, his or her culpability is likely to be less than that of many other suppliers. Furthermore, if they are shown only to have supplied undercover police officers and hold no stock for supplying others, the harm caused by their conduct is comparatively slight.

4. There will be some such adult and young offenders for whom a drug treatment and testing order will be appropriate in the circumstances indicated in Attorney-General's Reference No 64 of 2003, to which we have already referred. Where such an order is not appropriate, generally speaking adult offenders in the category we have identified, if it is their first drugs supply offence, should, following a trial be short-term prisoner, and, following a plea of guilty at the first reasonable opportunity should be sentence do a term of the order of two-and-a-half years' imprisonment. For young offenders the custodial term is likely to be less."

25. The appellants in Afonso did not, in fact, satisfy the criteria identified in the passage that we have just quoted as calling for a custodial sentence of no more than a sentence of two-and-a-half years. In R v Davies and others [2005] EWCA Crim 2437 appeals were allowed to the extent of reducing a number of sentences to two-and-a-half years, where the only supply had been on a "one-off" basis to undercover police officers. Where appellants had significant criminal records, sentences of three-and-a-half years were impose. In one case, however, the court upheld a sentence of four-and-a-half years on the ground that the appellant was a retail supplier of Class A drugs who did not satisfy the Afonso criteria.
26. It is helpful at this stage to consider the facts of Djahit and Twisse which justified the sentences passed in those cases. In Djahit the appellant pleaded guilty to possession of a Class A drug, heroin, with intent to supply and to possession of a Class B drug, cannabis. Police officers intercepted the appellant as he was entering a shop and adjoining flat. They searched the premises and found two plastic bags containing heroin. The appellant was searched and a further plastic bag containing a small amount of heroin was found in one of his socks. A total of 21.497 grammes of powder containing heroin was recovered, but the proportion of heroin in the powder was not ascertained. £6,005 in cash was found at the premises together with a list of names and addresses covering ten pages. The appellant was sentenced to six years' imprisonment for possession of heroin with intent to supply and to twelve months' imprisonment concurrent for possession of cannabis. In giving judgment the court said this:

"What then is the appropriate sentence following a trial for a typical low-level retailer of heroin or other Class A drug, with no relevant previous convictions, selling to other addicts in order to be able to buy drugs for his own consumption and to earn enough to live very modestly? It seems to us that he may about six years' imprisonment."

Giving credit for the plea of guilty and for the fact that the appellant appeared to have conquered his drug habit, the court reduced the sentence from six years to four.

27. In Twisse the appellant had pleaded guilty to supplying heroin to undercover police officers. He admitted dealing in heroin over a period of about nine months. His practice was to purchase an eighth of an ounce for £125, and to cut this into separate deals which he sold for a total of £250. His sentence was reduced from six years to five.

Conclusion

28. Mr Elliott, who has made forceful and helpful submissions on behalf of the offender, has sought to persuade us that the facts of this case fall much more closely within those in Afonso than those in Djahit and Twisse. We do not accept that submission, although we accept that the scale of the offender's dealing was not as great as that in either of those cases. The judge was wrong to conclude that the facts of this case fell within the limited class of cases identified in Afonso as calling for a lower sentence than those imposed in Djahit and Twisse. In this case the offender was not an addict who was buying small quantities from his own supplier in order to sell them on at a modest profit to purchasers who proved to be undercover police officers. He was retailing for profit on a considerable scale, as the 83 deals and the "business cards" that were recovered from his car demonstrated. This judge is one of great experience, but on this occasion his error in thinking that Afonso applied led him to impose a sentence which we have concluded was unduly lenient.
29. What is the appropriate sentence with which to replace that imposed by the judge, having particular regard to the fact that the offender has been placed in double jeopardy? Miss Cheema has rightly not suggested that any regard should be had to the various weapons found in the house of his girlfriend. No charge was brought in relation to them and there is no sound basis for attributing them to the offender.
30. We have regard to the youth of the offender, to his guilty plea and to the fact that he has already performed a substantial proportion of the unpaid work that he was required to perform under the terms of the suspended sentence. Above all, we have regard to the double jeopardy in which he has been placed, which is particularly significant as this was a first custodial sentence.
31. Having regard to all these matters, we have concluded that the appropriate course is to quash the sentence imposed and to replace it with a sentence of two years' detention in a young offender institution. The 112 days that the offender has spent on remand shall count towards the serving of that sentence, which shall run from the date when he is taken into custody.
_________________