No. 2011/03424/A2
Neutral Citation Number: [2011] EWCA Crim 2126
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Friday  2  September  2011

B e f o r e:

LORD  JUSTICE  PITCHFORD

MR  JUSTICE  TUGENDHAT

and

MR  JUSTICE  GRIFFITH  WILLIAMS

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ATTORNEY GENERAL'S REFERENCE No. 40 of 2011
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988

R E G I N A

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LEE  WILLIAMS
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Mr W Emlyn-Jones appeared on behalf of the Attorney General
Mr M Morgan appeared on behalf of the Offender
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J U D G M E N T
Friday  2  September  2011

LORD JUSTICE PITCHFORD:  
1.  This is an application made on behalf of the Attorney General under section 36 of the Criminal Justice Act 1988 for leave to refer to the court a sentence which he considers to be unduly lenient.  We grant leave.

2.  The offender is Lee Williams.  He is 43 years of age, having been born on 28 November 1967.

3.  On 24 March 2001 at the Isleworth Crown Court, before Miss Recorder Booth QC and a jury, the offender was convicted of a single count of conspiracy to supply a Class A drug (cocaine).  On 27 May 2011 he was sentenced by the trial judge to twelve months' imprisonment suspended for two years, with a two year residence requirement.  By that stage he had been in custody on remand for a period of 240 days.  In circumstances we shall need to describe, the Recorder was persuaded to impose a suspended sentence order.  

4.  The evidence at trial revealed the following matters.  On 22 September 2010 Customs officers in the United States intercepted a parcel on its way to 29 Baker House, Nightingale Road, Hanwell, London W7 1DS.  The parcel was posted via Fed-Ex.

5.  The parcel was carried into the United Kingdom in the hands of a British Airways pilot and handed immediately to officers of the UK Border Agency at Heathrow Airport on 25 September.  The contents of the parcel were describe on the external packaging as a gift comprising a jacket and sweater.  The packet was opened by police officers.  Inside they found a box wrapped in polka-dot paper.  Inside the box was a bubble-wrap envelope containing a large packet of a white powdered substance.  The weight of the substance was 988 grams.  When analysed the substance was found to be cocaine hydrochloride at a purity of 73%.  It followed that the equivalent weight at 100% purity was 721 grams.

6.  The officers resolved to allow the parcel to continue to its intended destination, the home of the offender.  On 28 September a Metropolitan Police test purchase officer attended the address posing as a delivery man.  The door was answered by a female, who was the offender's girlfriend.  The officer explained that he was delivering a package for Mr Smith.  The girlfriend offered to sign for it, but the officer told her that the recipient's signature was necessary.  Her immediate response was to call out for the offender, shouting "Smithy".  He appeared, confirmed that he was Mr Smith and signed for the parcel.  

7.  Very shortly afterwards uniformed officers entered the property.  The contents of the box which we have described had by now been substituted.  The offender was asked a number of questions.  When asked what he could tell the officers about the bubble-wrap envelope, he said that it had come in the post and that he did not know what it was.  He was asked why he had signed for the package.  He said that Mr Smith was a friend of his.  That is inconsistent with the conduct of the offender and his girlfriend at the time the package was delivered.  The offender was asked how he knew Mr Smith.  He said that he had met him in a bookmaker's in Greenford Road.  He did not know where he lived.  He did not have his telephone number.  He said, "I don't call him, he calls me".  

8.  When arrested he gave a similar account.  He said that on the Saturday immediately before his arrest the man had asked him if he would have a package delivered to his address in exchange for "a drink".  The offender maintained that he had not asked what would be in the package.  He said, "I didn't take much notice.  ....  I was just thinking about the money".  He again named the man as Leonard Smith, but maintained that he only realised that his surname was Smith when the package arrived.  That, too, is inconsistent with the behaviour of his girlfriend with the arrival of the package.  He was asked how Mr Smith had come by his post code.  The offender said that he had told him his address the previous Saturday, but that was all.  He was asked to describe Mr Smith.  He said that he was a white male in his thirties, 5'10" tall, with dark hair and of medium build.  This account was subsequently repeated by the offender at his trial.

9.  The evidence as to value was that at wholesale rates the powder would have been worth £52,500, and the street value was £145,600.

10.  Having heard the evidence and the Recorder's summing-up, the jury retired at 10.33am on Thursday 24 March 2011.  They returned at 12.56pm with their unanimous verdict of guilty.

11.  The offender was a man of good character, save for a conviction for driving with excess alcohol in 2008, which prompted the Recorder to give to the jury a full good character direction.  Unhappily, however, the offender had abused alcohol for much of his life.  As a result he suffers from cirrhosis of the liver.  

12.  A psychiatric report was prepared for the sentencing hearing by Dr David Oyewole, a consultant psychiatrist at Northwick Park Hospital, Harrow.   Dr Oyewole expressed (amongst others) the following opinions: the offender was not suffering from any mental illness; he presented as dysarthric (his formation of words was not clear).  The doctor commented that this form of difficulty with speech was frequently to be seen after a stroke.  As a matter of fact, two days after the jury returned their verdict, and while the offender was still on remand in prison, he suffered such a stroke following which he was transferred to hospital where he remained for about four weeks.  As to his understanding and level of intelligence,  the offender told Dr Oyewole that he did not know the month of the year.  When asked the day of the week, he gave the wrong answer.  On the other hand, the psychiatrist concluded:

		"8.6  .... it is unlikely that [the offender] has been an individual who has a moderate or severe learning difficulty."

He concluded that it was "possible" that the offender had a borderline IQ and was still able to function reasonably well.  He had been able to hold down unskilled jobs and to manage his flat.  He would be able to get through a normal day and "understand and appreciate the significance of his interaction with others".  If it was right that the offender was likely to be in the borderline IQ range, Dr Oyewole concluded that he would be a vulnerable person to anyone more sophisticated than himself.

13.  We have been provided with a pre-appeal report.  The offender informed its author that he had left school at 16, having obtained some CSE examinations.  He subsequently acquired a City and Guilds Diploma in engineering.

14.  It was common ground between the prosecution and the defence that conventionally a sentence for conspiracy to supply this quantity of cocaine resulting from an importation (subject to aggravating and mitigating features) would, after a trial, lie in the region of five to eight years' imprisonment.

15.  It is submitted on behalf of the Attorney General that the purity, weight and value of the drug imported demonstrates the trust reposed in the offender by the importers.  It is conceded that, while he was not an organiser, he must have been comparatively near the top of the supply chain.

16.  On behalf of the offender it is submitted that the offender's IQ and psychological make-up were in all probability qualities upon which a middle man in the conspiracy was relying.  The offender was trusted, not because he was a sophisticated member of the conspiracy, but because he was not.

17.  It is accepted by the Attorney General that the following were relevant mitigating features: there were no relevant previous convictions; the offender was not an organiser; he was not the owner of the drugs; he had a comparatively low IQ suggestive that there was an element of vulnerability; he was in poor health (a long-term alcoholic, a history of heart and liver disease and a recent stroke).

18.  At the outset of the sentencing hearing the Recorder recognised that on Aramah principles a substantial sentence of imprisonment was warranted.  More than once during the course of submissions made to her on behalf of both the prosecution and the offender, the Recorder referred to the need for her to perform a public duty in respect of an offence such as that for which the offender had been convicted.  The Recorder's attention was drawn to the Sentencing Council's Drug Offences Guideline Consultation dated March 2011.  It was not suggested by Mr Morgan that this guideline had been brought into effect, but it was provided to the Recorder for her information.  The proposal upon which consultation was sought was that quantities of drug and the identification of the nature of the offender's role should determine culpability, and accordingly the starting points and ranges for that offending.  Having seen the consultation guideline, we accept Mr Morgan's submission that it seeks to represent what is already sentencing practice.  A supply of the present quantity of drug (ie 700 grams or so at 100% purity) would be regarded by the guideline, if published, as "large".  Upon the Attorney General's assessment, the offender would be treated as playing a significant, rather than a leading or subordinate role.  He would, as submitted on his own behalf, be treated as playing a subordinate role for the reasons to which we have already referred.  If the Recorder was applying the guideline which was under consultation, the starting point would lie either at eight years or six-and-a-half years' custody, and the range would be five years to nine years, depending on the assessment of the offender's role.

19.  We should repeat that this court has observed in R v Valentas and Tabuns [2010] EWCA Crim 200 that the obligation to have regard to sentencing guidelines applies only to definitive guidelines and not to a consultation document.  The Lord Chief Justice advised that it was unwise to attempt to anticipate the contents of the final publication.

20.  The Recorder wondered whether it would be open to her to impose a sentence in the range of three-and-a-half to five years' imprisonment, having regard to the mitigating features which we have identified.  Mr Holland, who prosecuted, conceded that the upper end of that range might be appropriate in this case.  Mr Morgan for the offender agreed that the range might be three-and-a-half to five years' custody.  Mr Morgan invited the Recorder to consider the extensive mitigation.  He pointed out that the offender had spent 240 days on remand in custody (the equivalent of a sentence of 16 months' imprisonment).  He invited the Recorder to consider imposing a sentence of twelve months' imprisonment suspended for up to two years, which would have made an "aggregate sentence" (as it was put to the Recorder) of two-and-a-half years' imprisonment "in essence".  The Recorder accepted this invitation.

21.  In her sentencing remarks the Recorder recognised that the jury had rejected the defence that the offender was an innocent dupe and had been sure that he lent himself to a conspiracy to receive at his home a Class A drug.  On the other hand, she had been made aware of the offender's state of health and she had a doubt whether the offender had understood the depth of his involvement, and in particular the quantity of drug at 100% purity which he had agreed to receive.  The Recorder concluded that he may not have realised how much Class A drug would be contained in the parcel to be delivered to him.  She said that that view was reinforced by the contents of the psychiatric report.  She was (we paraphrase) persuaded that there was an element of vulnerability about the offender.  The Recorder expressly took into account, as she was invited by Mr Morgan, the fact that the offender had already spent 240 days on remand.  She concluded:

		"I am prepared to sentence you on the basis .... that in the normal course of events you would be in the range not of large quantity but of medium quantity.  You are definitely in the subordinate role, which puts the range at three-and-a-half years to five years' custody."

She gave a further discount for the fact that the offender may not have realised the precise quantity which he was obtaining, but proceeded to sentence on the basis that he thought that he was receiving a very small amount of the drug.  She then expressly accepted Mr Morgan's submission that in order to achieve the appropriate sentence she could add on to the 240 days served on remand a suspended sentence of twelve months' imprisonment.

22.  With respect to the Recorder, there is a difficulty in her reasoning which led to the suspended sentence.  In R v Fairbrother [2008] 2 Cr App R(S) 43, this court held that in the event that a suspended sentence imposed after 4 April 2005 is activated, the time spent on remand pending imposition of the order falls to be taken into account.  A similar conclusion has been reached by the Divisional Court in Carruthers v Hampshire Probation Service [2010] EWHC 1961 (Admin) (Moses LJ and Wyn Williams J, the latter of whom gave the leading judgment).  If, therefore, the offender were to be subsequently in breach of the order imposed by the Recorder, he would ordinarily be entitled, under section 240 of the Criminal Justice Act 2003, to have counted against the period of twelve months he would be ordered to serve, the 240 days that he had spent on remand in custody.  That being the case, the rationale for imposing this sentence in the first place was undermined. 

23.  It follows that if the learned Recorder regarded a sentence of two-and-a-half years' imprisonment (or above) as appropriate, the question of a suspended sentence should never have entered her thinking.

24.  This court has been provided with a medical report dated 26 May 2011, in which it is confirmed that the offender suffers from a dangerous cirrhosis of the liver related to his heavy alcohol consumption.  He now consumes one pint of Guinness a week.  He also has a background of ischaemic heart disease.  The offender has a 1-4% chance of the development of carcinoma; but provided he does not consume alcohol, he is likely to have several years of reasonable health.

25.  We consider that the Recorder was entitled to reach the conclusions that she did concerning mitigation of the offence and the personal mitigation for the offender.  In the most exceptional of circumstances it might be possible for the court to take an exceptionally lenient course.  In Attorney General's Reference No 8 of 2007 [2008] 1 Cr App R(S) 1 the court, on behalf of whom Lord Phillips CJ gave the judgment, concluded that the trial judge had been entitled to find that the offender (a young woman of good character) was manipulated and utterly under the control of her partner who was 20 years older and a malign influence upon her.  Accordingly, he had been entitled in the special circumstances of that case to impose a non-custodial sentence.  

26.  We consider that the present case is not in that exceptional category.  We consider that the Recorder was persuaded, against her initial and better judgment, to impose an unduly lenient sentence.  Giving full effect to the features of mitigation which she identified, we consider that the least appropriate sentence, after a trial, was one of four years' imprisonment.  There was simply no evidence that the offender's will was overborne by another.  The finding of the jury was that he knew he was importing Class A cocaine in a quantity of which he may not initially have been aware.  The verdict of the jury identified the limit of the naivety which could properly be attributed to him.

27.  The importation of a Class A drug has a public dimension of such importance that immediate and lengthy sentences of imprisonment must be the expectation of those implicated, save in such exceptional circumstances as we have identified. 

28.  We have considered the effect of requiring the offender, in his indifferent health, to surrender to custody, having been released in consequence of the order imposed by the sentencing judge.  We conclude that a modest further allowance should be made for the anxiety which must inevitably have accompanied the offender's knowledge of the risk of return to prison.

29.  We shall quash the suspended sentence order and impose in its place a sentence of three-and-a-half years' imprisonment.  That sentence will commence when the offender surrenders to custody.  We order that the offender surrenders to custody by 4pm today at Acton Police Station.  We direct that the period of 240 days spent on remand by the offender should count toward his sentence, pursuant to section 240 of the Criminal Justice Act 2003.
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