Neutral Citation Number: [2011] EWCA Crim 1236
Case No. 2011/01040/A2
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  14  April  2011

B e f o r e:
LORD  JUSTICE  LEVESON

MR  JUSTICE  TUGENDHAT

and

MR  JUSTICE  EDER
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ATTORNEY GENERAL'S REFERENCE No. 11 of 2011
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988
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R E G I N A

- v -

ANNA  MACHA
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Mr J Evans appeared on behalf of the Attorney General
Miss L Soertsz appeared on behalf of the Offender
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J U D G M E N T

LORD JUSTICE LEVESON:  
1.  This is an application by Her Majesty's Solicitor General under section 36 of the Criminal Justice Act 1988 for leave to refer to this court a sentence which he considers to be unduly lenient.  We grant leave. 
 
2.  The offender is Anna Macha.  She is 49 years of age and of previous good character.  On 25 January 2011, at the Crown Court at Kingston, she pleaded guilty to possession of a drug of class A with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971.  Three days later she was sentenced by Mr Recorder Fortune to a term of three years' imprisonment with time spent on remand being ordered to count towards the sentence.  

3.  The facts can be summarised shortly.  The offender was stopped by police at London Bridge Station and was searched.  Inside her handbag police found a carrier bag containing a cereal box in which there was a brown taped package containing a solid block of substance.  When asked what was inside the cereal box the offender replied, "Drugs".  The box appeared to be unusually heavy.  

4.  Forensic examination later confirmed that the package contained 990 grams of cocaine hydrochloride at a purity of 92%.  The wholesale value is asserted to be in the order of £28,000, but we find that valuation difficult to comprehend in the context of the general value of low purity drugs.  

5.  The offender was arrested on suspicion of being in possession of a controlled drug with intent to supply.  She told the police that she had been given the package at Abbey Wood Station and had been asked to deliver it to someone waiting for her at Wembley North.  She pleaded guilty on the basis that she did not own the drugs and that she had been asked to deliver them to another person.  She had been in possession of the drugs for approximately one hour and was unaware of their class.

6.  When interviewed the offender made no comment to the questions that she was asked and provided a prepared statement.  She said that she had been suffering from depression since the death of her son.  She had met a man through an internet site recommended to her by her sister.  She had met him several times and trusted him.  He had recently given her money to buy clothes for his shop in Africa.  It was he whom she had met on 3 November at Abbey Wood and they had gone to a hotel, where he asked her to deliver a box of cornflakes and a drink to a friend.  

7.  In her statement she asserted that she believed the cereal box contained cornflakes and was part of a sample for his shop in Africa.  She had no knowledge or grounds to suspect that the box contained drugs.  She now feared for her safety and did not wish to name the man who had given the box to her.  She had been shocked to find that the box contained drugs.  She then denied telling the police at London Bridge Station that the box had in fact contained drugs.
  
8.  During the course of a later interview, the offender denied being a drug dealer or any part of a drug gang.  It was made clear to the Recorder that a search of her home had revealed nothing which was relevant to this prosecution.  

9.  When first arraigned the offender pleaded guilty and was therefore entitled to credit for her plea at the first reasonable opportunity.  
10.  The basis upon which the offender had pleaded guilty was set out as follows:

	(a)  The offender was not the owner of the drugs that were found in her possession.

	(b)  On 3 November 2010 the offender was asked by a male acquaintance called "Jack" to deliver a package containing drugs to another individual who would meet her at North Wembley Station.

	(c)  The offender was unaware of the class of the drug in the package.

	(d)  At the time of her arrest the offender had been in possession of the package for approximately one hour.

11.  After opening the facts of the case the Crown informed the court that the written basis of plea "was acceptable to the Crown", although submissions were made in relation to the offender's professed lack of knowledge as to the class of drugs involved.  The prosecution did not "activity accept" that submission as it purported to deal with something that was in the offender's mind and not known to the prosecution.  The Recorder did not consider it necessary to hold any further investigation as to the basis of plea.  

12.  There was no pre-sentence report available to the Recorder.  It was accepted that a custodial sentence was inevitable.  A number of documents were placed before the court, including a letter which the offender had written expressing her profound remorse, and explaining that she had come to the United Kingdom and had tried to live a decent, law-abiding life but had suffered the tragedy of losing one of her children in 2006, after which she suffered from depression for which she received counselling and medication.  As a result she had been unable to retain her employment.  

13.  There was a letter from her general practitioner confirming the medical facts, and there were also letters from others attesting to her character.  

14.  In mitigation it was explained that the offender had been offered £700 to deliver the drugs which she had accepted.  She had hoped to use the money to fund a trip to Greece to see her other son who had left the United Kingdom to live with his father following her collapse in mental health as a consequence of the death of her other son. 

15.  The Recorder arrived at the sentence of three years imprisonment in this way.  Having considered the guideline cases set out in paragraph 27-107 in the current edition of Archbold and the decision in R v Allan [2010] EWCA Crim 726, the Recorder concluded that, had there been a contested trial, the starting point would have been in the region of four-and-a-half to five years.  Having given credit for the plea of guilty and rounded the sentence down (doubtless to reflect the other features of mitigation), the appropriate sentence was calculated to be one of three years' imprisonment.

16.  Mr Evans on behalf of the Solicitor General submits that the sentence was unduly lenient and submits that the Recorder failed to understand the effect of the guideline authority misapplying the decision to which he referred.

17.  It is argued that the following aggravating features are present within the circumstances of this offence: first, the large quantity and high purity of cocaine amounting to an equivalent of 910 grams at 100 per cent purity; second, the high degree of trust which had to be placed in the offender as the courier of a large quantity of highly pure cocaine; and third, the proximity of the offender to the source of the original importation, as suggested by that purity.

18.  On the other hand, Mr Evans acknowledges that the following mitigating features were present: first, her guilty plea at the earliest opportunity; second, her previous good character and the loss of that good character at the age of 49; third, the offender's position as a courier and not the owner of the drugs; fourth, the offender's lack of awareness as to the class of drugs in her possession and their purity; fifth, the short time that the offender had been in possession of the drugs; sixth, the strength of her personal mitigation; and seventh, her expressions of remorse.

19.  There is no doubt that R v Aranguren and Others (1994) 99 Cr App R 347 makes it clear in relation to importation that where the weight of drugs at 100 per cent purity is in the order of 500 grams or more, sentences of ten years' imprisonment and upwards are appropriate.  Guidelines in relation to offences of possession with intent to supply can be derived from cases such as R v Aramah (1983) 76 Cr App R 190 and Aranguren consequent upon the observations of this court in R v Satvir Singh (1988) 10 Cr App R(S) 402.  If more recent authority is required, we refer to Attorney General's Reference No 81 of 2003 (R v Mohammed Attiq) [2005] 1 Cr App R(S) 3, in which a sentence of five years' imprisonment for possessing the equivalent of almost 1 kilogram of pure heroin as a courier was increased to eight years.  In that case the offender was convicted of possessing a Class A controlled drug (heroin) with intent to supply.  He was driving a taxi when he was stopped by police officers who found in the car 4.1 kilograms of powder containing heroin at varying levels of purity, but which was the equivalent of almost 1 kilogram (959 grams) at 100 per cent purity, which is not dissimilar to the quantity involved in this case.  He had contested the trial on the basis that the bag had been left in his taxi by a passenger, but was convicted.

20.  It is against that background that we consider Allan to which the Recorder made reference.  Allan concerned over 1 kilogram of cocaine at 4 per cent purity, the equivalent of 40 grams at 100 per cent purity.  He was seen to leave a public house and drive to another, where he was approached by police who found the cocaine on a search of his car.  A co-defendant, whose fingerprints were found on the bags, was subsequently arrested for a further movement of cocaine and was sentenced to five-and-a-half years' imprisonment in relation to his two offences.  The appellant Allan was sentenced to three-and-a-half years' imprisonment which was reduced to two years' imprisonment on the basis that his involvement had been "one off" and the accepted assertion in his basis of plea that he only surmised, but did not know, that the carrier bag contained drugs.

21.  There are, as Miss Soertsz accepts, very real differences between Allan and this case.  However, it is clear that the Recorder fell into error when he sought to derive assistance which substantially reduced the starting point from the other authorities to which we have referred.  In our judgment the Recorder chose a starting point which was far below that which was appropriate on any proper view of the authorities to which we have referred.

22.  Mr Evans submits that the proper starting point, bearing in mind the authorities, the quantity and the purity of the drug found in the offender's possession, and the circumstances, suggests a figure in the region of nine years.

23.  Bearing in mind the limited period with which the offender is linked with these drugs and the fact that it is not gainsaid that she could not have been aware of its intense purity, we consider that starting point is somewhat high.  But we have no doubt that a starting point in the order of seven-and-a-half to eight years was amply merited.  From that sentence effect must be given not merely to the plea of guilty at the first reasonable opportunity, but also to the offender's personal circumstances and the remorse which she has demonstrated, as evidenced by the letter that she has written, and all that Miss Soertsz has so ably said on her behalf.

24.  We have no doubt that this sentence was unduly lenient.  Taking into account all the circumstances, including the fact that the offender is being resentenced today, the very least sentence we feel is appropriate is one of four-and-a-half years' imprisonment. 

25.  Accordingly, we quash the sentence of three years' imprisonment and substitute one of four-and-a-half years' imprisonment.  To that extent this Reference succeeds.

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