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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Hynes, R. v [2008] EWCA Crim 1934 (12 August 2008) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2008/1934.html Cite as: [2009] 1 Cr App Rep (S) 90, [2009] 1 Cr App R (S) 90, [2008] EWCA Crim 1934

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		12th August 2008

1. Mr Justice Bean: On 13th September 2007 the appellant was seen to throw a brown paper bag over the perimeter wall of Lowdham Grange Prison. It contained drugs: 100 grammes of powder containing heroin, with a value of between £4,000 and £10,000, and, in addition, 25 grammes of cannabis.
2. About 50 minutes later the appellant was found hiding in undergrowth nearby. He was put in a police vehicle where he dictated what he remembered of the registration number of the vehicle which had driven him to the prison. He said there had been two men in the car. The package containing the drugs was recovered within the prison but by this time it was too late for the information given about the car, such as it was, to be of any use. He was charged with attempting to supply a controlled drug of class A, namely the heroin, and of class C, namely the cannabis. He declined to comment in his interview, but in a defence case statement, dated 10th December 2007, he set out what his case was, amounting to what a layman would call duress, but not duress so as to be a defence to the charge. He pleaded guilty on 6th February 2008 and in due course was sentenced by His Honour Judge Teare to five years' imprisonment.
3. The basis of plea which was accepted by the Crown and by the judge corresponds with the content of his defence case statement. This said that the accused committed the offences because he was under threat from third parties and in fear that, if he did not carry out the offence, then either he or members of his family, his partner or their unborn child, would be at risk of serious injury. He had good cause to believe that the threats were serious due to previous incidents which had been reported to the police. These included an incident where someone had broken into his house at night with a weapon. The windows of his home had been smashed on numerous occasions. He had been assaulted. He had had to move house.
4. On the day in question he was walking to the supermarket when a car pulled up alongside him. Two men got out of the vehicle and proceeded to force him inside it. They drove off. It was from associates of these two men that he had previously been experiencing threats and harassment. They said that unless he did what they wanted him to do his partner and their unborn baby would come to harm.
5. He was driven to the exterior of Lowdham Grange Prison, was made to sit in the bushes while a number of phone calls took place between one of the men who took him there and a person whom the defendant believed to be inside the prison. He was given instructions about where to throw the package over the wall and he did so. He suspected that there might be drugs in the package but he did not know of what type or in what quantity.
6. In his sentencing remarks Judge Teare accepted that it had been the appellant's intention when he came out of prison following an earlier period of custody to stay on the straight and narrow and that he had to a certain extent demonstrated that. The judge accepted that there were substantial threats made to the appellant and effectively accepted the substance of the defence case statement. He also bore in mind that the impact of the custodial sentence would be extremely hard because the appellant and his partner had just had a baby, who, by the time of sentence, had been born. The judge said that he originally had in mind a sentence of seven years before he heard the mitigation.
7. The judge noted, as we do, that, although there had been significant and substantial pressure on the appellant, he nevertheless did throw the package over the wall, then went into hiding for nearly an hour and then when interviewed made no comment. He did, in the end, have the courage to plead guilty and had given a consistent account.
8. The single judge in granting leave referred to the case of Tanveer Waheed in which a sentence of seven years' imprisonment imposed by the trial judge for attempting to smuggle heroin into prison was reduced to five years. In that case, although duress of a sort was raised, the court did not accept it. On the other hand, the quantity of the heroin was only 1/30th of that which was thrown over the wall by the appellant in this case. Similarly in the case of Prince, referred to in Tanveer Waheed, a sentence of five years was upheld for smuggling or attempting to smuggle heroin into prison where the quantity was only half a gramme in contrast to the 100 grammes here.
9. It is not suggested that the starting point of seven years, which the judge had in mind before giving consideration to the pressure placed on the appellant, was in any way an erroneous starting point. Indeed, Mr Evans has not suggested that it was.
10. We are unable to say that the judge gave an inadequate discount for the pressure to which the appellant was subjected. Accordingly, the conclusion to which the judge came, namely that a sentence of five years' imprisonment was the appropriate one, taking account of the pressure placed on the appellant, is one with which we agree. The sentence cannot be said to be manifestly excessive. It follows that this appeal must be dismissed.