No: 200400810/A3 
Neutral Citation Number: [2004] EWCA Crim 1528
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 20th May 2004
 
B E F O R E:

THE VICE PRESIDENT
(LORD JUSTICE ROSE) 

MR JUSTICE GRIGSON 

MR JUSTICE ANDREW SMITH 

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

ATTORNEY-GENERAL's REFERENCE NO 11 OF 2004    
 
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Computer Aided Transcript of the Stenograph Notes of 
Smith Bernal Wordwave Limited
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MR J REES appeared on behalf of the ATTORNEY GENERAL
MR D TRAVERS appeared on behalf of the OFFENDER
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J U D G M E N T
1.	THE VICE PRESIDENT:  The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient.  We grant leave.
2.	The offender is 38 years of age, having been born in January 1966.  On 7th January 2004 he pleaded guilty to an offence of being concerned in the supply of a controlled drug of Class A, namely crack cocaine, to another and also to three offences of supplying crack cocaine on one occasion and heroin on two occasions.  He was sentenced by His Honour Judge Holloway at Liverpool Crown Court on 12th January 2004 to 5 months' imprisonment on each offence to run concurrently.
3.	The circumstances were that Operation Manton targeted those involved in the supply of Class A drugs in the centre of the city of Liverpool. Such supply in that city is well-known to this Court to be a matter of considerable concern.  The operation involved the use of undercover police officers acting as test purchasers.  Other officers using concealed equipment to record potentially incriminating conversation and other officers engaged on surveillance duties.  The offences to which the offender pleaded guilty spanned a period of about a month from the end of May to the end of June 2003.
4.	In each of the four supplies the person supplied was an undercover officer known as 'Sam'.  The first count related to 104 milligrams supplied on 29th May.  The offender was selling the Big Issue magazine.  He was approached by the officer whom he asked if he was looking for Jed and he told the officer that Jed had been locked up the previous night.  There was a subsequent meeting when a discussion between the two of them took place, involving the possibility of the officer and the offender pooling their money in order to buy drugs.  Thereafter the officer returned several times to speak to the offender and to discuss whether sufficient money was to hand.
5.	The offender asked the officer whether he wanted 'white', which was a reference to cocaine, or 'brown', which was a reference to heroin and the officer said 'white'.  Later that day the offender made a couple of telephone calls and soon afterwards a male arrived on a bicycle, approaching the offender and he gave the name 'Twinny'.  It was clear to the undercover officer that the offender and 'Twinny' knew each other.  The offender handed over £13 in cash and the officer handed £8 in cash to 'Twinny' in exchange for a bag of white substance. 'Twinny' asked the officer why he had only got £8 and the officer said he had thought that he and the offender were going in it together.  The purity of that crack was high: it was 86%.
6.	Count 2 related to 141 milligrams of heroin on 5th June 2003. There was another meeting between the officer and the offender outside a McDonald's restaurant.  The offender eventually made a telephone call to 'Twinny'.  Three other males, together with the offender and the undercover officer, caught a bus in order to rendez vous with 'Twinny'.  After they had alighted from the bus the undercover officer handed £10 to the offender and when 'Twinny' arrived, the offender handed him a quantity of money in exchange for a number of cellophane bags, two of which, containing a white substance, were handed to the offender and there were also three bags containing brown powder, two of which the offender handed to one of the other males, and one of which he handed to the undercover police officer.  The purity of that heroin was low: it was only 20%.
7.	Count 3 related to supplying 107 milligrams of crack cocaine on 9th June.  A little after midnight on 9th June the undercover officer spoke to the offender, who was in the company of another man referred to as 'Beard' and the officer arranged to buy a bag of 'white'.  In that connection he took a bus with the offender and 'Beard' to another part of the city.  During the journey the offender was handed money by 'Beard' and £10 by the officer.
8.	Shortly after reaching their destination, the offender made a telephone call and, within a very short time, the offender, who had met whoever had come from the dealer, handed the officer a bag of 'white' substance which was of 77% purity.
9.	Count 4 related to supplying 137 milligrams of heroin on 23rd June.  On that occasion the officer met the offender and 'Beard' and asked the offender if he could supply a bag of 'brown'.  The offender said that it would cost £10. The officer tried to barter, but the offender said that on this occasion he had no money.
10.	Later that day, the officer met the offender and 'Beard'. The offender made a telephone call. The three men took a bus to another part of Liverpool and there a further telephone call was made by the offender.  At that stage, the officer handed £10 to the offender.  Within minutes 'Twinny' appeared, to whom the offender handed a quantity of cash and received three bags in exchange, one of which contained brown powder which he handed to the officer.  The offender asked 'Twinny' whether he was doing his job right by bringing the punters up, to which 'Twinny's' response was that the offender was "just doing it to get his freebies".  That heroin was of 28% purity.
11.	The offender was arrested somewhat later, on 16th October 2003.  In interview, he said that he was addicted to heroin and cocaine and had been using drugs since 1987.  He used four or five bags a day, costing £30 or £40, which he funded by begging and selling copies of the Big Issue. He said he bought drugs on behalf of many people and, in consequence, would get a discount from the dealer by purchasing in bulk.  For example, two rocks of crack would cost £15 but three rocks £20.  Sometimes, rather than merely getting a discount, he would get his drugs free.
12.	The prosecution conceded, at the hearing before the trial judge, that the offences involved a pooling of resources by the offender and the undercover officer, which amounted to facilitating the acquisition of drugs for the officer.  But, the prosecution said, there was a slight benefit by way of discount accruing to the offender.
13.	On behalf of the Attorney-General, Mr Rees draws attention to three aggravating features. First, four offences were committed over a period of about a month. Secondly, two of the offences took place during a period of two concurrent conditional discharges which had been imposed on the offender for quite different offences. Thirdly, the offender has recent previous convictions for possessing Class A drugs.
14.	Mr Rees draws attention to three mitigating factors. First, the quantities supplied were small. Secondly, the offender was clearly something less than a commercial dealer of the kind commonly encountered in cases such as this and was acting so as to reduce the cost of drugs to himself.  Thirdly, Mr Rees points out that the offender not only pleaded guilty to all the offences, but fully admitted what he had been doing and did so frankly in the course of interview.
15.	The submission which is made is that the sentence of 5 months passed by the learned judge (deliberately passed, it should be mentioned, rather than a 6 month sentence to ensure that the offender who had been in custody was immediately released) was unduly lenient in failing to take into account adequately the gravity of the offence, the need to deter others and public concern about offences of this kind.
16.	Mr Rees drew attention to four authorities in particular.  In Attorney-General Reference No 84 of 2000 [2001] 2 Cr App R(S) 336, this Court, increasing a sentence passed in the court below, indicated that, on a guilty plea, for supplying crack to a police officer, a sentence of 4 or 5 years might properly be expected in the ordinary case of commercial supply.  Mr Rees also drew attention to R v Patel [1998] 1 Cr App R(S) 170 and R v Denslow [1998] Crim LR 566, of the judgment in which, on 6th February 1998, the Court has been provided with a transcript.  Mr Rees also drew attention to R v Rumble [2003] 1 Cr App R(S) 618, where a sentence of 3 years was reduced to 2, on a guilty plea, in relation to the supply of ecstasy without a commercial motive.
17.	Mr Travers, on behalf of the offender, placed reliance before the learned judge and sought to place reliance before this Court on the case of Denslow.  That, it is to be noted, was an appeal against conviction, the appellant having been given an absolute discharge.  The court concluded that, in the light of a decision of this Court in R v Buckley and Lane 69 Cr App R, the appellant was technically guilty of an offence of possessing a Class A drug with intent to supply.
18.	In the course of giving the judgment of the Court, Mantell LJ questioned why it was thought necessary to charge supply, in the circumstances of that case, bearing in mind that a plea had been offered to a charge of possession which, in the view of the Court, ought to have been accepted.
19.	As Mr Travers rightly accepts, the circumstances of Denslow, which clearly had a considerable impact upon the sentencing judge in the present case, were conspicuously different from those in the present case.  In particular, Denslow had possession of the relevant drug on only one occasion.  As is apparent from what we have already said, this offender was involved in the supply of drugs on four occasions, spread out over a period of a month.  Therefore, as it seems to us, this was plainly not a case of mere technical guilt of the offences to which he pleaded guilty.
20.	We would have expected, in the light of the authorities and the particular circumstances of this case, that a sentence of the order of 18 months to 2 years would have been passed on this offender in the court below.  
21.	The question which then arises, however, on the basis that the sentence passed in the court below was unduly lenient, is whether this Court should interfere.  We have concluded that we should not, for a number reasons.  First, when regard is had to the principle of double jeopardy, that is to say that the offender is being sentenced a second time, whatever sentence ought to have been passed in the court below would inevitably have to be discounted in this Court. Furthermore, bearing in mind that the offender, by reason of the sentence passed by the Crown Court judge was immediately released, if this Court were now to increase the sentence, he would have to return to prison.  That aspect calls for a further discount from the sentence which would have been appropriate in the court below.
22.	Next, it is apparent, so far as this offender is concerned, that he has done well in the 4 months since he was released.  There is before us a reference from the community network which runs the hostel at which he has lived since 16th February.  It is apparent that the offender is making positive moves in controlling his drug habit. He is attending the drug dependency unit in Liverpool, receiving counselling and support, and he is working diligently on a market garden project at the hostel.  Furthermore, he has provided great assistance to the manager of the hostel in relation to another resident there who has been seriously ill.
23.	Having regard to those matters, it would not be appropriate, in the exercise of our discretion, to interfere with the sentence which was passed on the offender.
24.	Two further matters merit comment.  First of all, lest anyone should think otherwise, the unduly lenient sentence which was passed by the learned Crown Court judge was not based in any way at all on any assistance which some people might think that the offender had given to the police.  There has been no such assistance and the sentence was erroneously based upon the decision of this Court in Denslow and was not due to any perceived credit for other matters.
25.	The final matter which is of considerable significance is this.  The sentence which was passed upon the offender resulted from a major operation by the police in Operation Manton.  We have been told that, so far, the same judge has passed sentence on 43 defendants of whom this offender is but one.  All that we know, in relation to those other defendants, is that the range of sentences which he has imposed has been between 18 months and five-and-a-half years' imprisonment. It is apparent that the learned sentencing judge regarded this offender as being in a wholly exceptional category, compared with others who had appeared before him. We have no details in relation to those other 43 defendants. But it is a matter of significance when this Court is invited to interfere with a sentence said to be unduly lenient, that the sentence passed was not in isolation in respect to a particular defendant but in the context of many other defendants being sentenced by the same judge in relation to the same or similar activity.  That makes the task of this Court extremely difficult if called upon to interfere with one out of so many sentences.
26.	For the reasons which we hope we have adequately explained, although the sentence was unduly lenient, we do not interfere with it.