Neutral Citation Number: [2018] EWCA Crim 1770 
Case No: 201801827 A4 
IN THE COURT OF APPEAL
CRIMINAL DIVISION

REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 OF THE CRIMINAL JUSTICE ACT 1988 

  Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Tuesday, 19 June 2018 
 
B e f o r e:

LORD JUSTICE SIMON 

MR JUSTICE NICKLIN

HIS HONOUR JUDGE MAYO QC
(Sitting as a Judge of the CACD)
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R E G I N A 
v 
EDWARD JAMES MARLAND 
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Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
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Ms A Morgan appeared on behalf of the Attorney General 
 
Ms R Cooper appeared on behalf of the Offender 

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J U D G M E N T

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LORD JUSTICE SIMON:  
1.	The Solicitor General seeks leave to refer to this court, under section 36 of the Criminal Justice Act 1988, sentences which he considers to be unduly lenient.  The sentences were passed in the Crown Court at Preston on 13 April 2018 by Her Honour Judge Lloyd, in respect of three counts of supplying Class A controlled drugs, contrary to section 5(3)(a) of the Misuse of Drugs Act 1971.  The drug involved was heroin and in respect of each count he was sentenced to a concurrent term of 3 years and 9 months or 45 months. 

2.	The Reference raises the issue that arises under section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 and minimum sentences for certain drug offences.  

3.	Lancashire Police carried out an undercover operation in the Preston area between March and July 2017 and the charges related to the supply of wraps of heroin on three occasions to undercover police officers in June and July.  The undercover police officer used the pseudonym "Billy" and on each occasion he contacted the same mobile number that he had been informed was a contact for the supply of heroin.

4.	On 22 June 2017 (count 1) the undercover officer made a phone call to the number and asked to purchase "two B" (two deals of heroin).  He was directed to a record shop and was joined by drug users who also wished to purchase drugs.  The drug users made reference to a man named "Eddy". They were approached by a car being driven by the offender.  A male from the group approached the vehicle and spoke to the offender who drove away.  The man indicated that they were to go to a nearby side street.  On the side street the offender handed the undercover officer two wraps of heroin in exchange for £15.  The total weight was 280 milligrams.  It had a purity of 38%.  On 29 June 2017 (count 2), the undercover officer made another call to the number.  The call was answered briefly and he received a callback which again requested two deals of heroin.  He was again directed to the record shop.  A different car approached this time and turned into a side street.  The undercover officer approached the vehicle with another purchaser.  The offender got out of the car and the officer followed him into a nearby cul‑de‑sac.  The offender removed approximately four small brown wraps and 10 white wraps from his pocket.  He then gave the officer two wraps of brown powder in exchange for £15.  This was subsequently confirmed to be 311 milligrams of heroin at 34% purity.

5.	On 4 July 2017 (count 3), the undercover officer made a call again requesting two deals of heroin.  He was told to go to the rear of the offender's flat.  This was close to the record shop where he had been previously directed.  The officer saw the offender standing within the doorway, holding the door open.  He went into the flat together with the offender; and the officer was told by him to lock the door behind him.  The offender questioned the officer about where he was from, where he lived and how long he had been on heroin.  The offender's manner became aggressive.  He handed the officer two wraps containing brown powder in exchange for £15. The offender asked the officer what he thought about the quality of the product.  The officer responded that it was "the best around".  The powder was subsequently confirmed to be 259 milligrams of heroin at 43% purity.  The offender was arrested on 22 November 2017.  He refused to be interviewed.

6.	On 22 December 2017 the offender, with a number of others charged with similar offences, pleaded guilty to the three offences at a pre‑trial preparation hearing.  The case was then adjourned for the preparation of pre‑sentence reports for some of the 19 defendants before the court.

7.	The offender was 46 at the date of sentence.  There was no pre‑sentence report.  In our view, there should have been in circumstances where the minimum term applies, unless the court is persuaded that it would be unjust to pass such a sentence ‑ see R v Densham [2015] 1 Cr App R(S) 37, at paragraph 8.

8.	There was however a psychiatric report from a consultant psychiatrist, Dr Lucy Bacon.  She set out the offender's mental history and in particular a breakdown in 2012, associated with flashbacks relating to his being the victim of sexual assaults in his childhood.  He had disclosed this history of sexual abuse to a psychiatrist in 2015.  The report provided support for the view that the judge was to take about the offender's opiate dependency. The history of childhood sexual abuse was in the view of the psychiatrist "probably relevant to his drug abuse", however he was dependent on heroin well before memories of childhood abuse re‑emerged.  Dr Bacon noted that he had said he was able to remain drug free while in custody, and also noted that he did not meet the full diagnostic criteria for post‑traumatic stress disorder.

9.	The offender had 36 convictions recorded against him for 97 offences.  These included offences of dishonesty (including burglary) as well as offences of violence, driving offences, Bail Act offences and breaches of the terms of sentences imposed by the court.  His last conviction was in October 2012, when he received a sentence of 12 months' imprisonment for dwelling burglary.

10.	Importantly, for present purposes, he had been convicted of two previous offences of possession with intent to supply Class A drugs, committed after 30 September 1997 and at a time when he was over 18.  On 2 December 1997 he was sentenced to a term of 3 years' imprisonment for possession of heroin with intent to supply.  On 7 February 2006 he was sentenced to a further term of 3 years' imprisonment for possession with intent to supply.

11.	This history of offending meant that he fell within the provisions of section 110(1) of the Powers of Criminal Courts (Sentencing) Act 2000.  This was his third "drug trafficking offence" committed after 30 September 1997.

12.	By section 110(5) "drug trafficking offences" in this context means an offence specified in paragraph 1 of schedule 2 of the Proceeds of Crime Act 2002.  That schedule includes as "drug trafficking offences" offences contrary to section 5(3) of the Misuse of Drugs Act 1971, possession of a controlled drug with intent to supply. 

13.	Section 110(2) provides: 

(2) The court shall impose an appropriate custodial sentence [a term of imprisonment] for a term of at least seven years except where the court is of the opinion that there are particular circumstances which-
(a) relate to any of the offences or to the offender; and 
(b) would make it unjust to do so in all the circumstances.

14.	The judge's sentencing remarks and her conclusions on the application of section 110(2) were briefer than they might have been.  However, she was dealing with 18 other defendants, who were being sentenced for their parts in the Lancashire Police operation and she clearly had in mind the issues which arose.  In passing sentence the judge noted that the offender had supplied heroin on three days and was driving a car on two of those occasions.  On at least one occasion he was supplying to others and had additional bags.  For this reason, and because he questioned the undercover officer, the judge concluded that he was not at the lowest level of supply although he was subject to direction.

15.	The judge found three reasons for not imposing the minimum term.  First, the length of time since the qualifying offence in 2006.  Second, the fact that the offender had not been before the courts since his burglary conviction in 2012 and third the offender's position in the hierarchy.

16.	On the Solicitor General's behalf Ms Morgan submitted that the judge's approach failed to give proper effect to the statute and resulted in an unduly lenient sentence.  The offender had a significant antecedent history of criminality including two similar and qualifying offences of supplying Class A drugs.  The charges involved three offences of supplying Class A drugs with intent.

17.	Ms Morgan recognised that there was material mitigation: the mental and physical health problems associated with his drug addiction and his guilty pleas.  However, her primary submission was that the facts of the case did not justify the judge's conclusion that there were "particular circumstances" that made it "unjust" to impose a custodial term of 7 years "in all the circumstances". She referred the court to three cases: R v Lucas [2012] 2 Cr App R(S) 14; R v Gallone [2014] EWCA Crim 1140 and Attorney‑General's Reference No 36 of 2018 (R v Usherwood) [2018] EWCA Crim 1156.

18.	For the offender, Ms Cooper submitted that the judge had considered the sentencing exercise carefully and at proper length.  In her general remarks, before dealing with the individual defendants, she specifically referred to the need for deterrence in imposing the sentences against all the defendants for the offences.  Importantly, the judge had the psychiatric report that described the offender's mental health problems and explained why he could now make progress in becoming drug free.  This was significant mitigation which the judge considered.  While on remand he had taken serious efforts, for the first time in his life, to become drug free and the prison report described his continuing commitment to remaining drug free.

19.	The judge had set out her reasons for not imposing the minimum term.  She concluded that the age of the previous convictions counted against the supposition that he was a long‑term drug dealer.  He had been involved, according to the prosecution opening, for a shorter period than others involved in the undercover operation.  This was not a case in which a deterrent sentence was needed to deter future offending and the circumstances were materially different to those in the cases of Lucas and Gallone relied upon by the Solicitor General.  She referred to those cases and reminded the court that there were different circumstances in relation to the timing of the offences that the court was considering there.  She also referred to a passage in the judgment of the court in Gallone at paragraph 18, in which the court described the sentencing judge as being: 

... in a particularly good position to make an assessment about the responsibility and culpability of individuals in court in the police operation, their relative culpability and the impact of the offending on the community. He was entitled to conclude that the nature of the then problem required a deterrent element.

20.	By parity of reasoning Ms Cooper argued that the judge here was entitled to the view that the minimum sentence was not required for deterrent purposes in this case.

21.	In conclusion, she submitted that there were circumstances, which the judge was entitled to regard as exceptional but weighed in the balance against imposing the minimum term.  His previous record had been poor but his last conviction had been in 2012.  This supported the submission that he was making real efforts to change his life.  These were factors unique to him.  Finally, she submitted on the offender's behalf, that the sentence of 45 months was within the Definitive Guidelines for these offences.

22.	We have considered these submissions.  In our view, the starting point in considering the sentence, following a plea, was to recognise that Parliament intended that a minimum sentence of 5 years and 7 months should be passed unless the particular circumstances of the offences and the particular circumstances of the offender made such a sentence unjust.  The court is not looking for exceptional circumstances but particular circumstances ‑ see, for example, R v Hickson [2002] 1 Cr App R(S) 71, at paragraphs 23 and 24.

23.	Although we have considered the cases to which we have been referred, we bear in mind that Lucas was a renewed application for leave to appeal against sentence that was refused and that Gallone was an appeal against sentence which was dismissed.  However, we recognise that in both cases the court made observations which are relevant to the present application.  First in Lucas, at paragraph 14, the court recognised the strength of the criticism of what may be the harsh effect of applying section 110 of the 2000 Act.  However, as the court said, that was a matter for Parliament and not for the courts.  At paragraph 13 Jackson LJ, giving the judgment of the court said:  

This court must loyally apply section 110 of the Act, and it must not treat perfectly normal circumstances as being 'particular circumstances' within section 110(2) in order to circumvent the operation of those provisions.

24.	We agree.

25.	Secondly in Gallone, at paragraph 19 the court rejected the argument that the antiquity of one of the prior convictions was an important factor.  The court said: 

[If] Parliament intended there to be a requirement of ... the commission of previous offences within a certain time frame, it could have said so and would have said so.  

26.	There is a tension between these observations and the observation of the court in R v McDonagh [2006] 1 Cr App R(S) at paragraph 10, where the court considered that the fact that the appellant's second conviction occurred 10 years before his third conviction could amount to a particular circumstance in that case.

27.	McDonagh was referred to in Gallone in a short passage following the passage we have referred to at paragraph 19:  

While in some cases the reasoning seen in the case of R v McDonagh [2005] EWCA Crim 2742 might have applied, it did not necessarily make it unfair to apply the statutory minimum sentence.

28.	The Attorney‑General's Reference in the case of Usherwood provides guidance to courts which have to consider the application of section 110 of the 2000 Act.  Usherwood's previous record rendered him liable to the mandatory minimum term of 7 years, subject to the maximum 20% credit for a guilty plea.  The circumstances were different from the present case and the sentence would have been his first lengthy term of imprisonment.

29.	At paragraph 13 the court endorsed the sentiments expressed in Attorney‑General's Reference No 15 of 2015 (R v Greenfield) [2016] 2 Cr App R(S) 23 at [31]:  

There has been a clear steer from this court in recent years that the word ‘exceptional’ is not to be diluted; sympathy for an offender is not enough to prevent a judge from doing their statutory duty.

30.	As the court in Usherwood noted, those observations were made in the context of the mandatory sentences for firearms offences in section 51A of the Firearms Act 1968 and they refer to "exceptional" and not to "particular" circumstances.  Nevertheless, the same approach must apply to section 110(2) as indicated to the court by Lucas.  Certain, albeit limited principles, can be derived from the terms of the statute and the case law.  First, the provisions of section 110 of the 2000 Act are intended to have deterrent effect.  Second, normal circumstances are not to be regarded as particular circumstance. Third, the court must come to the view that those particular circumstances are such as to make it unjust to pass the minimum sentence in all the circumstances.

31.	One way of testing whether a sentence will be unjust in the particular circumstances will be whether the sentence under section 110 is markably more severe than the sentence which would be passed applying the Sentencing Council guidelines for the offence.  But this has to be measured against the deterrent element which underlies section 110.

32.	While we recognise that the judge took considerable care over her sentencing remarks and that these assessments are primarily for the sentencing judge, we agree with the Solicitor General's submissions that the judge's reasons were insufficient for concluding that there were particular circumstances relating to the offence and the offender such as to make the imposition of the minimum term unjust.  We accept that the offender has suffered from difficulties identified in the psychiatric report and that he has taken steps while in prison to master his drug addiction. But these are not sufficiently particular circumstances as to justify departing from the mandatory provisions, nor such as to lead injustice in the application of those provisions.  As is apparent from the observations in McDonagh and Gallone, the length of time since the last qualifying offence and implicitly since the last offence is not a circumstance which renders the imposition of the mandatory sentence unjust of itself, although it may be a matter to be taken into account.

33.	Nor do we consider that the offender was at a relatively low level albeit not at the lowest level of supply, a particular circumstance justifying the conclusion that the mandatory sentence was unjust in the circumstances.  The mandatory provisions apply to all those convicted of this type of drug offence.  His was a significant role in street dealing.  The category range for such offending is three‑and‑a‑half to 7 years, up to the mandatory sentence under section 110.  Furthermore, there were three such offences.  The offender was entitled to credit for his plea and section 144(2) of the Criminal Justice Act 2003 provides that nothing in section 110 of the 2000 Act prevents the court taking into account pleas of guilty and imposing sentences which are not less than 80% of the mandatory term.

34. Accordingly, we grant leave and amend the sentences on each of counts 1 to 3 from terms of 45 months' imprisonment concurrent to terms of 67 months concurrent on each count.  That affords the maximum amount of credit of 20% on a 7‑year term for the guilty pleas.