Attorney General's Reference No. 68 OF 2005

Neutral Citation Number: [2005] EWCA Crim 3142 IN THE COURT OF APPEAL CRIMINAL DIVISION No: 2005/3535/A0 Royal Courts of Justice Strand London, WC2 Thursday, 10 November 2005 B E F O R E: THE PRESIDENT OF THE QUEEN'S BENCH DIVISION (SIR IGOR JUDGE) MR JUSTICE OUSELEY MRS JUSTICE SWIFT DBE - - - - - - - REFERENCE BY THE ATTORNEY GENERAL UNDER S.36 CRIMINAL JUSTICE ACT 1988 ATTORNEY-GENERAL's REFERENCE NO 68 OF 2005 - - - - - - - Computer Aided Transcript of the Stenograph Notes of Smith Bernal Wordwave Limited 190 Fleet Street London EC4A 2AG Tel No: 020 7404 1400 Fax No: 020 7831 8838 (Official Shorthand Writers to the Court) - - - - - - - MISS S WHITEHOUSE appeared on behalf of the ATTORNEY GENERAL MR R HOLLAND appeared on behalf of the OFFENDER - - - - - - - J U D G M E N T 1. 2. 3. 4. 5. 6. 7. 8. THE PRESIDENT: This is a Reference by Her Majesty's Solicitor General on behalf of Her Majesty's Attorney General under section 36 of the Criminal Justice Act 1988. The Reference is concerned with Peter John Downs, a man of 27 years of age, born in 1977 and a father of three children. He is a man with two minor drug-related offences recorded against him. Otherwise there are a number of further convictions. He has had custodial sentences imposed on him, but they have been extremely short ones. On 24th February 2005 at an adjourned plea and directions hearing, the offender pleaded guilty to three counts: count 1, possession of cocaine with intent to supply; count 2, possession of diamorphine with intent to supply; count 3, driving while disqualified. On 7th June before His Honour Judge Brown sitting in the Crown Court at Preston he was sentenced to four years' imprisonment on each of counts 1 and 2, and two months' imprisonment on count 3, all sentences were ordered to run concurrently. Appropriate forfeiture and destruction orders were made. The facts can be briefly summarised. On 16th November 2004 the offender was seen driving a van which he had borrowed earlier from an acquaintance. At about 1.15 he picked up a passenger, a man called Podmore. The two of them drove to the Western Union shop in Rochdale, the sort of shop which can arrange for telegraphic money transfers to take place. The defendant was under observation. He was seen writing on a piece of paper, leaning on the dashboard. Podmore, who was in the passenger seat, left the van. He spoke to the offender through the driver's window and the offender then handed him some further paperwork. Podmore went into Western Union shop, leaving it after about a quarter of an hour without paperwork. He got into the van. The two of them drove away. A money transfer worth £1,300 had taken place. Not long afterwards at about 2.45 the offender was seen coming away from a block of flats in Middleton, Manchester. The Crown's case was that he had collected drugs which were later found with him and that the money telegraphic transfer was some form of downpayment on those drugs. At 3.30 in the afternoon police officers on patrol on the M65 motorway saw the offender driving on the westbound carriageway in the area of Blackburn. He turned off at junction 7. He was stopped by the police. He was alone in the van. On the seat next to him there was a holdall. It contained two packages of cocaine. Each package weighed just over one kilogram. The packages bore a shamrock design and appeared to be in the packaging in which they had been imported. On later analysis the purity of the drugs was found to be 73 per cent and 71 per cent, producing a total weight of pure cocaine of 1.44 kilogrammes. The wholesale value of this cocaine was in the region of £60,000 with a street value of £100,000 if sold in one gram street wraps. During the process of arrest the offender began by giving the police a false name. He was taken to a police station and gave his real name, saying that he had originally given a false name because he was a disqualified driver. That did not deter the police from arranging a search of his home that evening. In a kitchen cupboard two packages of heroin were found. Each weighed just under half a kilogram and on later analysis there was found to be 51 per cent pure heroin, so that the total weight of pure heroin was just about half a kilogram. This was worth in the region of £20,000 wholesale or, in a much wider bracket, something between £50,000 and not short of £100,000 if sold in individual street bags. The total weight of drugs at 100 per cent purity was just under two kilogrammes. The offender was interviewed. He said that nothing in the holdall from the van was his, otherwise he made no comment. In the course of mitigation it was submitted to the judge that the way in which the case should be approached was that the offender was acting as the courier of the cocaine, and that, so far as the heroin was concerned, he had had it in his possession for about a week with instructions to hand it over to whomsoever he was instructed to hand it to. The judge said that those assertions in mitigation on the offender's behalf could not be gainsaid. In due course, as we have already recorded, the offender pleaded guilty. That was an important aspect of his mitigation - indeed, in realistic terms, the only significant one. He had no major previous convictions but he could hardly be treated as a man of good character. 9. 10. 11. The aggravating features of this case are obvious. The value and quantity of the drugs found in his possession or over which he had control were high; two different types of dangerous class A drugs were involved and in the case of the cocaine, although the judge was prepared to deal with the matter on the basis that the offender was a courier, he was carrying cocaine from close to the source of importation. We draw that inference from the fact that the cocaine was still in its importation package. 12. We have considered a number of sentencing decisions which are relevant in this field. They give helpful examples of the appropriate approach to sentencing brackets applicable to this kind of case. Like all such decisions the ultimate sentence is of course fact specific. It is sufficient for the purposes of this judgment to record that we have considered the decision in Mohammed Attiq [2005] 1 Cr. App. R (S) 11, where Keene LJ summarised a number of decisions of relevance themselves to the then application in similar circumstances to this, the case of Attiq being concerned with possession of heroin, almost one kilogram, with intent to supply. 13. On the basis of her analysis of the relevant authorities, Miss Whitehouse has submitted that the appropriate level of sentence in this case after a plea would have been in the region of seven-and-a-half to eight years' imprisonment. We are inclined to agree without making any firm ruling on the matter. 14. What this case comes to is that the offender was involved in the distribution of cocaine which had been imported into this country either close to the source of importation, or not very far away from it. Given the money transfer and the absence of any convincing explanation for it, we find it difficult to accept that he had no financial interest in the consignment of cocaine beyond what someone else, still unnamed and still unknown, would have paid him for his efforts. That view is reinforced by the simultaneous possession at home of a large quantity of heroin. We are, however, prepared to take the SMITH BERNAL WORDWAVE view that we should approach the case on the basis that the judge did, that he was a courier of the cocaine and the holder of the heroin on behalf of somebody else. That said, however, he was plainly close to someone who was prepared to trust him in a pivotal role in the distribution of the cocaine and, in realistic terms, in the long-term distribution of the heroin. On any view this offender must have been highly trusted by someone who was, if not a major dealer, very close to a major dealer - either to act on his behalf, or as a major source for potential distribution. 15. Without question this sentence was unduly lenient. We have considered what the appropriate sentence should be in the light of the principle encapsulated in the words "double jeopardy". We have taken account of Mr Holland's careful submissions on behalf of his client. Having reflected on those matters we have come to the conclusion that this sentence must be increased. The appropriate sentence to substitute for the sentences of four years on counts 1 and 2 is six-and-a-half years' imprisonment. Thank you both for your assistance. SMITH BERNAL WORDWAVE