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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 >> Davidson, R v [2009] EWCA Crim 1704 (24 July 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1704.html Cite as: [2010] 1 Cr App R (S) 81, [2009] EWCA Crim 1704, [2010] 1 Cr App Rep (S) 81

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 24th July 2009

1. MR JUSTICE IRWIN: On 12th March 2008, at the Crown Court at Snaresbrook, this appellant pleaded guilty to conspiracy to supply a class A drug (that was heroin) and on 16th January 2009 was sentenced to 11 years' imprisonment with a direction under section 240 of the Criminal Justice Act 2003 that 435 days which he had spent on remand should count towards his sentence. There were also orders for the forfeiture, disposal and destruction of the drugs under the Misuse of Drugs Act. He appeals against sentence by leave of the Single Judge.
2. The facts can be summarised fairly shortly as follows. On 8th November 2007, police officers saw an Audi motorcar being driven by the co-defendant (who was subsequently acquitted) to the appellant's home address. The appellant came out of his home, took a holdall from the co-defendant and went back inside. Shortly afterwards, the appellant left and drove off. His car was stopped by the police and subsequently they executed a search warrant at the appellant's home. The holdall was recovered and was found to contain 28.8 kilograms of heroin at a purity between 58 and 64 per cent, which was the equivalent of 17.9 kilograms of heroin at 100 per cent purity. The drugs had a uncut wholesale value of between £345,000 and £489,000 and a street value with a range between 864,000 and around £2 million. The appellant was arrested.
3. When he was interviewed he admitted carrying the holdall into his home but said he thought it contained technical musical equipment and denied knowing that it contained drugs.
4. He subsequently entered his plea at the first opportunity at the plea and case management hearing, at the same time lodging a basis of plea, so called, with the court. The essential features of this were that he had borrowed money, was unable to repay the money to the person who had loaned it to him and that that person agreed to waive the balance of the debt, which was in excess of £3,000, in return for him acting as a delivery man. He acknowledged in the basis of plea that he suspected the holdall contained drugs but he did not know it as a definite fact. He has also said not to be a wealthy man and without a wealthy lifestyle, but he had not dealt in drugs and it is not clear on any view that the allegation was he had held the drugs for a short time.
5. The prosecution took no active step about the basis of plea that was submitted. They neither formulated a critique of it nor accepted it. No Newton hearing was asked for or conducted and it follows that the judge, and indeed this court, must sentence on the basis of that basis of plea.
6. This appellant has previous convictions for bail sentences and for possession of an offensive weapon, but he has no convictions for drugs offences nor has he served a custodial sentence. No pre-sentence report was before the court or is before us, but we do have the benefit of seeing a prison report, dated 18th June of this year. Despite one single adjudication, which does not seem to have carried great weight in the tone and content of the report, the appellant is described as being "a polite, respectful and well mannered" prisoner. He has conducted himself well in custody and indeed has made some use of his time there by educating himself.
7. Before the judge were a number of positive references as to the appellant's character, both of family and friends, and, as the learned judge explicitly acknowledged, there is clearly something to be said for the appellant in terms of a good side to his character.
8. In sentencing, the learned judge had specific regard to the guideline case of R v Aramah [1983] 76 Cr.App.R 190. It was said in that case that, in respect of cases of class A drugs at 100 per cent purity totalling at that purity more than 5 kilograms, sentences of ten years and above are appropriate before any discount is applied for a plea of guilty.
9. As to the motivation that this offending arose from debt to be discharged in this fashion, the learned judge said rightly that the appellant put his debt before the law and, in relation to class A drugs, that was a choice that he made in the knowledge of the illegality of what he must have realised he was doing and the law was proceeding on that basis.
10. The real point of this appeal, as was indicated by the Single Judge, was that before the allowance which was given by the judge for the plea of guilty and for a combination of other factors, which the learned judge assessed at around 15 per cent, the starting point was too high. Insofar as the change of sentencing regime brought on by the Criminal Justice Act 2003 means that sentences and guideline sentences pre-dating the Act should be regarded as being somewhat too high, that certainly is a factor which can be prayed in aid in mitigation and was so before the judge. It is right to say that counsel also relied on the personal factors on which we have touched. Really the complaint is that to get to a 11 year sentence, allowing for all the relevant factors, as the judge did, the starting point had to be at around 20 years or even on some views above.
11. In addition to Aramah, counsel has referred this court to the case of R v Ali Unlu [2003] 1 Cr.App.R(S) 101, where the applicant received a sentence of 16 years' imprisonment for harbouring 24 kilos of heroin at 100 per cent purity, which had a value then in excess of £2.8 million. This court held in respect of Unlu that the starting point of 16 years was clearly not excessive and counsel's point in referring to the applicant in that case is to distinguish a situation of that offender from the current appellant.
12. It seems to us that there are appropriate factors for so doing. Unlu was described as a ruthless, clever and wily criminal, whereas this appellant was sentenced on the basis of not being such a determined criminal, since he displayed some vulnerability in the course of his arrest. Unlu's sentence was under the old regime before the application of the 2003 Act. Unlu was convicted of transporting the drugs in full knowledge that they were drugs and having them for a period of days. In this instance, the appellant did not transport the drugs and had them for a hour or so. Unlu was shown to be close to the source of the principal dealers in class A drugs, not a subordinate player, which it is urged upon us this appellant clearly should be regarded as being. There are distinctions, it seems to us, validly to be made between the position of Unlu and this appellant.
13. We have also been asked to consider the situation of the co-defendant in the reported case of Unlu, a Mr Serbetli, who again was responsible for the transportation of that larger quantity of drugs and who received nine years' imprisonment after a contested trial. It seems to us that only limited support or help can be drawn from the position of the co-defendant in Unlu, given that his case was not closely examined by the court since he was not an applicant for leave to appeal.
14. However, taking all of the factors into account, including paying regard to Unlu, we agree that the starting point here was too high. The correct range was between 12 to 14 years, before the relevant discounts and, taking into account specifically the plea, the basis of plea and the other points advanced, we consider that the proper sentence of imprisonment here was one of seven years. Accordingly the appeal succeeds, the sentence will be quashed and a sentence of seven years' imprisonment substituted.