Neutral Citation Number: [2011] EWCA Crim 1907
No: 201101551 A3 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Thursday, 7th July 2011

B e f o r e:

LORD JUSTICE LEVESON 

MRS JUSTICE SWIFT DBE 
 
MR JUSTICE GRIFFITH‑WILLIAMS 
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R E G I N A 

v 

DARIUS ANTON JAMES
 
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Mr M Foley (Solicitor Advocate) appeared on behalf of the Appellant 
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Judgment

1.	MRS JUSTICE SWIFT:  On 16th February 2011, at Leeds Crown Court before His Honour Judge Spencer QC, the appellant, who is 21 years old, was sentenced for five offences committed in April 2010.  Those offences were possession of a Class A drug (cocaine) with intent to supply, possession of a Class A drug (crack cocaine) with intent to supply, possession of a further Class A drug (heroin) with intent to supply, and possession of a Class B drug (cannabis) with intent to supply.  There was also an offence of possession of criminal property.  There was a preliminary hearing in November 2010 at which the prosecution papers were not available.  There was then a plea and case management hearing on 26th January 2011, at which the appellant pleaded guilty.
1.	The sentence for possession of cocaine was five years 220 days' imprisonment.  For the other four offences he was sentenced to the same period of imprisonment concurrent.  The total sentence was therefore one of five years 220 days' imprisonment.  He appeals against that sentence by leave of the single judge.
2.	On the morning of 4th April 2010 police officers executed a search warrant under the provisions of the Misuse of Drugs Act 1971 at the appellant's home address.  The appellant lived in an attic which was converted into a bedroom, and there were other smaller rooms.  The police officers who entered the building saw the appellant leaning out of the bedroom window whilst those officers who had remained outside saw him throw a package the size of a cricket ball onto the roof of the premises.  The package bounced off the roof and fell to the ground, where it was retrieved by one of the officers.  
3.	The appellant was arrested.  His home was searched and the police found £804 in cash, which was the subject matter of the count of possession of criminal property.  They also found packages containing cannabis, a dealer's list, a package containing cocaine and three mobile phones.  The package he had thrown out of the window was found to contain 64 wraps of drugs.  In all the officers recovered 28 wraps of heroin weighing 6.89 grams with a street value of £344, 36 wraps of crack cocaine weighing 7.59 grams with a street value of £569, a package of cocaine weighing 7.28 grams with a street value of £291 and 374.83 grams of cannabis with a street value of just over £1,600.  The total street value of the drugs was £2,815.  The appellant's mobile phones were examined and one of them contained 57 messages relating to drug dealing sent by the appellant between 1st and 23rd March 2010.
4.	When interviewed the appellant declined to comment, but a prepared statement was read out in which he claimed that all the drugs found were for his own use and that he did not intend to share, give, sell or provide the drugs to anyone else.  He stated that he had bought the cannabis in bulk because it was cheaper that way.
5.	The appellant has previously been convicted for a total of 11 offences, all bar one related to drugs.  In December 2004 he was sentenced for offences of possessing cocaine, heroin and cannabis with intent to supply.  Those offences had been committed on 17th September 2004, the day before his fifteenth birthday.  He was given nine month referral orders for each offence.  In February 2007 the appellant was sentenced for six further drug‑related offences.  They comprised two groups of offences.  First, there were two offences of supplying crack cocaine and one of supplying heroin.  Those three offences were all committed in June 2006, when the appellant was 16 years old.  Then there were offences of supplying crack cocaine and heroin and of possessing crack cocaine with intent to supply, which had been committed in October 2006, shortly after his seventeenth birthday.  On that occasion he was sentenced to two year supervision orders for each offence concurrent, with a direction that he should undertake an intensive supervision and surveillance programme and be subject to a six month curfew order with electronic monitoring.  
6.	There was a pre‑sentence report dated 3rd February 2011 before the sentencing court.  The appellant had told the author of the report that he had been dealing regularly since January 2010 and would get approximately 20 deals of heroin and crack cocaine delivered twice a day, which he would then sell on the street.  By this means he would earn about £100 a day to supplement his benefits.  He admitted frankly that he found dealing drugs an easy way of making money.  He has never used Class A drugs himself.  He used to take cannabis, but no longer does so.  Perhaps surprisingly, the author of the report assessed him as being at low risk of re‑offending, whilst recognising that a prison sentence was inevitable.
7.	The appellant wrote to the court, expressing remorse and his intention not to re‑offend in the future.  Since the offences he had moved in to live with his girlfriend and her family and had made attempts to find work. 
8.	When sentencing the appellant, the judge noted that, since he had been convicted for a third time of a Class A drug trafficking offence, he fell within the terms of section 110 of the Powers of Criminal Courts (Sentencing) Act 2000, which requires the court to impose a custodial sentence for a term of at least seven years unless the court is of the opinion that there are particular circumstances relating to the offences or the offender which would make it unjust to do so in all the circumstances.  The judge considered that there were no such circumstances in the appellant's case.  He therefore took seven years' imprisonment as his starting point.  However, he said that the appellant was entitled to credit for his guilty pleas and reduced the sentence by 20 per cent, that being the maximum discount for a guilty plea which is permitted by section 144(2) of the Criminal Justice Act 2003 in a case where the minimum sentence is imposed pursuant to section 110 of the 2000 Act.  The final sentence was therefore five years 220 days' imprisonment.
9.	There is a prison report before this court which indicates that the appellant is co‑operative and generally well behaved.  He is working in a production workshop with a view to undertaking a course in some type of building skills in the future.  
10.	In his grounds of appeal, Mr Mark Foley, solicitor advocate, who represented the appellant at the sentencing hearing and before us today, contended that the judge was wrong not to find that there were circumstances which made it unjust to impose the statutory minimum term in this case.  He identified those circumstances as the appellant's youth at the time the two sets of qualifying offences were committed, the fact that he received non‑custodial sentences for each set of qualifying offences and the fact that he had not previously served a custodial sentence.  He submitted also that insufficient account had been taken of the appellant's age, his early guilty pleas and his previous compliance with non‑custodial sentences.  He produced a pre‑sentence report which had been prepared for the hearing in February 2007 and which described how the appellant had successfully completed his referral orders, complied well with their requirements and had been co‑operative and polite.  For that reason she recommended that he remain subject to a supervision order, a recommendation that was accepted by the court.
11.	This is the appellant's third conviction for supplying Class A drugs.  His offending appears to have followed a similar pattern on each occasion in that he was provided on a regular basis with a number of wraps or deals which he would then sell on the street.  By this means he was able to make a steady income.  It was easy money, as he told the authors of the pre‑sentence reports prepared in both 2007 and 2011.  Although he was aware of the risks he was running, he could not resist the temptation.  
12.	It is this kind of repeat offending committed for the purpose of financial gain that section 110 of the 2000 Act is intended to address.  There are, however, unusual features in this case.  The first set of qualifying offences for the purposes of section 10 were committed when the appellant was aged only 14 years.  The second set were committed when he was aged 16 and just 17 years.  Even now the appellant is a relatively young man.  He has never previously received a custodial sentence.  
13.	We consider that those features, and in particular his age at the time of the qualifying offences, constitute particular circumstances relating to the appellant which would make it unjust to impose the prescribed minimum custodial sentence of seven years in his case, and we consider that the judge should have so found.  In our judgment, the total sentence passed was excessive.
14.	There is, however, no doubt that a substantial prison sentence was inevitable having regard to the nature of the offences and the appellant's previous convictions for offences of a similar nature.  As his advocate has conceded, there is no mitigation available in the offences themselves.  
15.	In our judgment, the appropriate sentence after a trial would have been one of six years' imprisonment.  
16.	Since we take the view that it would be unjust to impose the prescribed minimum sentence, the limited reduction permissible for a guilty plea does not apply.  We therefore take account of the circumstances leading to the appellant's guilty plea.  At the preliminary hearing he made it abundantly clear, so we are told, that he intended to plead guilty in the future, although no papers were available on that day and he was not arraigned.  He then pleaded guilty at the following plea and case management hearing.  In those circumstances we consider it appropriate to give full credit of one third for the appellant's early guilty plea, making a final sentence of four years' imprisonment.  The sentences of five years 220 days' imprisonment on each count will therefore be quashed and there will be substituted sentences of four years' imprisonment on each count concurrent.  The ancillary orders stand.  To that extent the appeal is allowed.