No: 200902151/A6 
Neutral Citation Number: [2009] EWCA Crim 1773
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 
 
Wednesday, 3rd June 2009
 
B e f o r e:

LORD JUSTICE RIX

MR JUSTICE GRIFFITH WILLIAMS 
 
THE RECORDER OF CARDIFF 
(Sitting as a Judge of the CACD)
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R E G I N A 

v 

SHANE BOYTON 
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Computer Aided Transcript of the Stenograph Notes of  
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Miss J Omari appeared on behalf of the Applicant
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J U D G M E N T
1.	MR JUSTICE GRIFFITH WILLIAMS:  This is an application for leave to appeal against sentence which has been referred to the Full Court by the Registrar.
2.	In the Crown Court at Chelmsford on 17th April the applicant pleaded guilty to an offence of conveyance of a prohibited article into prison and was sentenced by His Honour Judge Ball QC to 6 months' imprisonment.  That plea of guilty had been entered at the plea and case management hearing.  A concurrent sentence of imprisonment for an offence of failing to surrender to bail is not the subject of  this application. 
3.	The facts are as follows.  On 4th August 2008 the applicant was remanded in custody to HMP Chelmsford where on arrival he was searched.  He was instructed as part of the search procedure to sit on the body orifice search system, which is designed to detect the presence of any metallic objects.  That system indicated the presence of a metallic object and the applicant was asked to remove his clothing.  When he removed his tracksuit trousers, he rolled them up and attempted to place them directly into his property box to prevent them being searched.  When instructed to give them to the prison officers he said: "To be honest guv, there's a phone in there."  One of the officers shook the tracksuit trousers and a mobile phone fell to the floor.
4.	He pleaded guilty on a basis which reads:  
"I accept I had a phone in my possession when entering prison but I had forgotten it was there.  
It wasn't until the BOSS chain bleeped that I remembered the phone was in the pocket of my shorts, which I was wearing underneath my tracksuit bottoms.  
I took off my shorts and tracksuit bottoms together and as I took them off the bottom of my legs I felt my phone.  I told the guards I had a phone before giving them the shorts and tracksuit bottoms."   
Although there was no Newton hearing, the judge clearly rejected that basis of plea because he sentenced the applicant on the basis that he was attempting to smuggle the mobile phone into prison.  That decision is not criticised by Miss Omari.
5.	Given the weight of the evidence and the fact that the appellant, who is 31 years old and has 48 convictions of 157 offences, the learned judge's decision is understandable.  It is all the more understandable when one has regard to the fact that the appellant has served many prison sentence but, significantly, has served two prison sentences since the provisions of the Offender Management Act 2007 came into force on 1st April 2008 and so he knows full well from the notices which are displayed around prisons of the absolute of prohibition on the taking into prison of prohibited articles such as mobile telephones.
6.	The grounds of appeal are that the sentence of 6 months' imprisonment, indicating a starting point of some 9 months' imprisonment was manifestly excessive, that insufficient credit was given for the guilty plea, which was made at the earliest opportunity, that insufficient consideration was given to various details of mitigation, including the applicant's response to drug treatment programmes and the fact that this was the first offence of its nature that he had committed and insufficient consideration was given to the special circumstances in relation to his medical condition.
7.	In the course of her submissions, Miss Omari submitted as she did in the Crown Court that the court should have regard to the fact that there is no evidence that the mobile phone was in working order.  That clearly being a relevant consideration in mitigation, it formed no part of the basis of plea to which we have referred.  The mobile telephone was an exhibit and was available for inspection.  In the judgment of this court, there are no grounds for concluding that the sentencing judge was wrong to proceed to sentence on the basis that this was a working mobile phone.
8.	The rationale of the prohibition on the taking into prison of mobile telephones can be briefly stated by reference to a passage in the witness statement of Detective Constable Davis.  That statement reads:  
"In summary therefore the presence of a mobile phone or a component part such as a SIM card has massive implications for not only the prison establishment but also the wider general environment.  It provides a prisoner or prisoners with opportunities to communicate that they would not otherwise have and this therefore allows them to act in a way that prison is supposed to prevent them from doing.  In short it undermines the security of the prison, the good order welfare of prisoners, the rehabilitation of offenders, the course of justice and the prevention and detection of crime.  It is because of this that HMP CHELMSFORD seek to take positive wherever possible against any offences involving mobile phones within the establishment." 
9.	But for one matter, to which we will refer, in the judgment of this court, there can be no arguable ground that  a starting point of 9 months' imprisonment was manifestly excessive. 
10.	The matter to which we consider special regard should be had is this.  The applicant submitted to an adjudication process at Her Majesty's Prison Chelmsford in respect of this mobile phone.  We understand that he pleaded guilty and was sentenced to seven days loss of privileges.
11.	Miss Omari told us that that was a matter which was communicated to the sentencing judge in the course of her plea in mitigation.  It is not a matter to which the learned judge made any reference in sentencing.  In the judgment of this court, it was a matter which should have been taken into account to avoid any suggestion or possibility of double penalty.  It is for that reason and that reason only that we are minded to reduce the sentence.  We would approach sentence in this way.  The sentence of 6 months can be equated to a sentence of 26 weeks from which one week can be deducted to arrive at a sentence of 25 weeks' imprisonment.  That is the sentence that this court has in mind.  We will give leave to appeal and treat the hearing of the application as the hearing of the appeal and substitute that sentence of 25 weeks for the sentence of 6 months' imprisonment.
12.	 LORD JUSTICE RIX:  To that extent this appeal is allowed, permission having been granted.  Miss Omari thank you for your assistance.