Neutral Citation Number: [2011] EWCA Crim 2619
Case No: 201104139/4141/4140/A2 
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL

Date: Thursday, 27 October 2011
 
B e f o r e:

LORD JUSTICE PITCHFORD 

MR JUSTICE ANDREW SMITH 

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

ATTORNEY‑GENERAL'S REFERENCE NO 61, 62 AND 63 OF 2011 
(Gaunt, Robson and Froud)
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Mr W Emlyn‑Jones appeared on behalf of the Attorney General 
Mr P Abrahams appeared on behalf of the First Offender
Mr P Wishlade [solicitor advocate] appeared on behalf of the Second Offender
Mr R Spragg appeared on behalf of the Third Offender 
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J U D G M E N T 

1.	LORD JUSTICE PITCHFORD:  This is an application by the Attorney General to refer sentences to the court pursuant to section 36 of the Criminal Justice Act 1988.
2.	Tina Robson, referred to as the first offender, was born on 31 March 1985 and is now aged 26 years.  Wayne Froud, referred to as the second offender, was born on 7 April 1984 and is now aged 27 years.  Kevin Gaunt, referred to as the third offender, was born on 2 December 1980 and is now aged 30 years.
3.	The offenders were all charged following an operation by the police in Sunderland and South Tyneside called Operation Bacon during which test purchases of drugs were made at street level.  At plea before venue no guilty pleas were indicated and the matter was committed to Newcastle Crown Court.
4.	On 13 May 2011 Kevin Gaunt pleaded guilty to three counts of supplying class the A drugs cocaine and heroin and one count of possessing the class B drug amphetamine.  On 2 June Tina Robson pleaded guilty to five counts of being concerned in the supply of class A drugs, cocaine and heroin.  On the same day Wayne Froud pleaded guilty to one count of supplying a class A drug, cocaine, and a second count of being concerned in the supply of cocaine.
5.	The sentence hearing took place on 4 July 2011.  Kevin Gaunt was sentenced to eight months' imprisonment concurrent upon each count with 121 days ordered to count against that sentence.  As we understand it, that enabled his immediate release.
6.	Tina Robson was sentenced to six months' imprisonment suspended for a period of 18 months with a requirement attached of supervision, also for a period of 18months.
7.	Wayne Froud was sentenced to a community order for 18 months with supervision for 18 months and an electronically tagged curfew between 22.00 hours and 0530 hours for a period of four months.
8.	The test purchase operatives ("TPO") first made contact with a man called Martin Rees.  He organised the supply of drugs through another co‑accused, Kelly Anne Dolman.  Tina Robson was in October 2010 Rees's partner.  
9.	On 7 October TPO Mel drove Rees and TPO Lucy to an address in Blackhall to pick up Robson.  All four drove to the Arizona nightclub where Rees hoped to meet a contact for the purchase of cocaine.  He failed.  The car was driven on to Penshaw where they were told by Robson to try Teesdale Avenue.  As they drove along Teesdale Avenue Robson thought she recognised and called over a man who happened to be walking on the pavement.  That was Wayne Froud.  He is the brother of a friend of Robson's.  She asked him where they could get 3 grammes of cocaine.  Froud told them to meet him 20 minutes later at Teesdale Cut.  When they met, Froud went into the rear of a house in Avondale Avenue carrying £90 in cash handed to him by TPO Mel.  He came back carrying three bags: Mel had two and Rees one.  Mel's packages each contained about 0.8 grammes of cocaine at 10 per cent purity.
10.	Six days later, on 13 October 2010, TPO Mel again went to Rees's home, this time with TPO Stu, looking for crack cocaine.  Rees and Tina Robson accompanied Mel and Stu to Sunderland, trying to locate a dealer called Gordon.  At Robson's suggestion they went to a public house.  They made contact by telephone.  Robson suggested telling the dealer that they wanted four deals of crack cocaine and one of heroin.  TPO Stu handed over the money and Rees went to collect the drugs.  When he returned, he handed to Stu three wraps, one of 0.2 grammes of heroin at 19 per cent purity and two of crack cocaine.
11.	The following day, 14 October, TPO Lucy telephoned Wayne Froud who had supplied her with his number.  Lucy and TPO Mel met Froud in a car park in Penshaw shortly after 7.35 pm.  Froud handed over 0.852 grammes of cocaine for a price of £60.
12.	On 19 October TPO Stu and TPO Lucy went to Rees's home.  Rees and Tina Robson went with them to Park Lane, Sunderland.  En route Robson phoned Kevin Gaunt, using the nickname Pixy.  On arrival Gaunt got into the car and discussed their requirements.  Gaunt made a phone call.  They were then directed to Chester Street where Robson and Rees left the vehicle.  When they returned, Robson handed TPO Stu two wraps of crack cocaine with a purity of 75 per cent.  
13.	Robson then made calls in an attempt to obtain heroin.  They were directed to Eighth Street in Blackhall.  Gaunt and Robson left the car and returned with 0.376 grammes of heroin at a purity of 21 per cent.
14.	On 20 October Gaunt at TPO Stu's request made arrangements for the purchase of crack cocaine for £40.  TPO Stu and TPO Lucy took Gaunt to Gilsland Road.  On arrival, Gaunt approached a man in a blue tracksuit.  He returned with two tinfoil wraps.  A small piece of crack cocaine was given to Gaunt.  The remaining drug weighed 0.047 grammes and 0.066 grammes at 83 per cent purity.  Further attempts by TPO Lucy to obtain drugs through Froud were met with a negative response from Froud.
15.	On arrest, on 4 March 2011, Gaunt had a small quantity of amphetamine concealed on his body.  He made no reply in interview.
16.	Robson was arrested on 7 March.  She made full admissions.
17.	Froud, who was also arrested on 7 March, admitted that he had been called over by Robson on 7 October.  He had assisted them to obtain cocaine.  He denied handing it over personally.  He agreed that a week later he had sourced a further gramme for TPO Lucy.  This time he admitted handing it over.
18.	Tina Robson had been convicted of 82 offences on 32 previous occasions, largely for offences of dishonesty, violence and breach of public order.  She also had three previous convictions for possession of drugs.  On 28 March 2000 she was convicted of possession of the class B drug cannabis and made the subject of an 18 month supervision order.  That was subsequently varied to a two year supervision order, but it was eventually revoked and replaced with an eight month detention and training order.  On 20 November 2001, for an offence of possession of the class B drug amphetamine, she was conditionally discharged for  12 months.  On 5 May 2004 for possession of the class A drug heroin she was made the subject of a 12 month community rehabilitation order with a requirement to attend the Think First programme.
19.	The author of the pre‑sentence report upon Miss Robson recorded her account that at the time of her arrest she was consuming up to nine bags of heroin per day.  She was, she said, a regular user of crack cocaine and she abused alcohol.  These offences were committed for a small share of the drugs.  She was assessed as posing a high risk for reoffending.  She had a two year old child in the care of her father but that child had since been taken into care.  
20.	Although she had on a number of previous occasions expressed the wish to address her substance misuse, she was unable to maintain motivation.  She was registered with a drug intervention agency in Durham but she had poor attendance and engagement.  She was not, it was thought, sufficiently stable to be made the subject of a drug rehabilitation requirement.
21.	Unhappily, since this sentence was imposed upon Miss Robson, there has been very little response.  Engagement with and motivation towards the Clay Path Project in Durham has been minimal.  Whenever she was been seen by her probation officer she has been heavily intoxicated and said that she was still consuming ten litres of alcohol at 7.5 per cent proof per day.  We are informed by Mr Wishlade, who represented Miss Robson, that she has since been committed for trial to the Crown Court in respect of two alleged offences of theft committed following the imposition of the current sentence.
22.	Wayne Froud has two previous convictions for the possession of drugs.  On 26 March 2002 for an offence of possession of the class B drug cannabis resin he was conditionally discharged for three months and on 26 June 2002 he was convicted of possession of the class B drug cannabis resin and of possession of the class A drug MDMA and was fined the sum of £30.  He, too, had several other previous convictions for violence and public order offences.
23.	Mr Froud told the author of the pre‑sentence report that he thought he had been doing Tina Robson a favour by helping her to locate drugs.  He had himself been drinking so his judgment was in that respect affected.  He did not, however, explain why he then went on to supply TPO Lucy on a separate occasion.  He said that he did not have a drug problem himself.  He had been recently and was currently employed as a machine operator with a company supplying parts to Nissan.  He had, he said, undergone drug tests at work and had not had a positive test.  He said that he had recently started to spend more time with his nine year old daughter from whose mother he was estranged.
24.	Mr Froud attended his first probation appointment on 7 July 2011.  He has since failed to attend a number of appointments.  He was in breach of his curfew requirement on 31 July 2011 and has since been in further breach.  He appears to use as his excuse the fact that the tagging equipment had not been affixed.  When challenged over his failure to abide by the order, he became angry and expressed grievance towards the order made.
25.	Kevin Gaunt had previous convictions for burglary, theft, violence, public order offences and other dishonesty offences.   
26.	On 18 August 1999, for two offences of possession of class B cannabis resin, he was sentenced to a probation order for 18 months.  On 13 October 2003 for possession of heroin he was made the subject of a drug treatment and testing order for 12 months.  On 20 October 2003 for possession of cannabis he was conditionally discharged for 12 months.  On 2 March 2005, for an offence of supplying heroin and a further offence of being concerned in supplying heroin, he was imprisoned for a period of 30 months.  Finally, on 13 February 2007, for possession of heroin, he received a prison sentence of four months.
27.	The day after sentence was passed in the Crown Court Kevin Gaunt was arrested for theft of a wallet.  He ingested with a friend a large quantity of Valium tablets with vodka.  He was subsequently sentenced to four weeks' custody and was released on 26 August.
28.	It was noted that he had made some voluntary efforts to face down his substance misuse and with the help of his brother he had obtained a rented flat.  We are informed that Mr Gaunt has yet again appeared before the court charged with a further offence of theft.
29.	At the sentence hearing on 4 July 2011 the learned judge was referred to the relevant guideline authorities on sentencing for similar offences.  In effect, these were three people who had facilitated for police officers working undercover the acquisition of class A drugs.   There was no evidence that they did so for financial reward.  The only benefit which they could hope to obtain was a small share of the drugs which were thus obtained.
30.	Counsel for the offenders drew to the judge's attention the recent consultation on the Sentencing Council's draft guideline Drug Offences, the consultation having taken place between 28 March and 20 June 2011.  We were informed that this was not only case involving drugs before the court on that day and that earlier references had been made to the draft guideline.  What was proposed in the draft were categories of seriousness based upon the class of drug, the quantity of drug and the role played by the offender.  High purity of drug would comprise an aggravating feature.  
31.	The judge took the view that should such a scale be applied in the present case these offenders would be assessed as playing a "subordinate role" in the supply of very small quantities of class A drugs.  The recommended starting point would have been 26 weeks' custody with a range from a high level community order to two years' custody.
32.	If this is the correct interpretation of the draft guideline, the starting point suggested would have been at odds with current sentencing practice for those who deal or assist others to deal in class A drugs.
33.	At pages 21 to 22 of the professional consultation document it is said:
"Supplying to Undercover Police Officers 
In the guideline case of Afonso the Court of Appeal identified a very narrow group of suppliers of drugs whose sentences appeared disproportionately high and recommended a reduction of these.  A number factors were taken into account: the offenders being first‑time offenders, drug addicts, out of work (thus with no other means of funding their habit), dealing solely to fund their own habit and having supplied to undercover police officers only.  There has been concern that this reference to supplying to undercover police officers has been isolated from the other factors in a way that was not intended and may have led to inconsistencies in sentencing practice.  The draft guideline does not propose the inclusion of 'supply to undercover police officers' at either step 1 or step 2 as the council does not agree that on its own this factor necessarily makes an offence of supply less serious."
34.	In Afonso [2005] 1 Cr App R(S) 99 at 560, this court gave guidance that in the case of those to which the Sentencing Council referred in its draft, following a plea of guilty at the first reasonable opportunity, a sentence of two to two and a half years might be appropriate rather than a sentence of four to seven years depending upon plea, as had formerly been contemplated as a result of the decisions of the court in Djahit [1999] 2 Cr App R(S) 142 and Twisse [2001] 2 Cr App R(S) 9 at page 37. 
35.	At page 35 of the professional consultation document the following passage appears:
"Offender types that would be expected to fall under the description of a subordinate role include dealers making no financial gain but supplying solely to feed their own addiction, so‑called runners or those acting as 'introducers' (receiving no gain by introducing the user to the dealer) and those who supply to friends or acquaintances for no gain, for example, when conducting a shared purchase.  Any offender seeking to make a financial gain from supplying a drug would fall outside of this category and be regarded as performing a significant or a leading role.  Tables 17 to 19 set out the starting points and ranges for these offences."
36.	The learned judge opened his sentencing remarks with the following observations:
"You have to be sentenced for various offences of supplying class A drugs to test purchase officers over a limited period of time towards the back end of last year.  It seems to me looking at the way of thinking that there is about this kind of case nowadays that the draft guidelines that are about to come into force clearly indicate that sentencing thinking is coming down and the kind of sentences that were being imposed for this kind of offence some years ago are now substantially greater than the appropriate sentences now."
37.	It is submitted on behalf of the Attorney General that this approach by the learned judge to a draft consultation guideline was not properly open to him upon the authority of a decision of the court in Valentas [2010] EWCA Crim 200, [2010] 2 Cr App R(S) 73.  At paragraph 18 the Lord Chief Justice, Lord Judge, made very clear the limited use to which a draft guideline might be put.  He said in relation to advice given by the Sentencing Advisory Panel:
"This summary of the relevant authorities seems to us to indicate a very clear principle. The proposals of the Sentencing Advisory Panel are proposals only. As we have shown, they form part of a public consultation process. At the conclusion of the consultation process, they may or may not be amended. Thereafter, the proposals would have fallen to be considered by the Sentencing Guidelines Council, and will now be considered by the new Sentencing Council. At that stage the Sentencing Council will decide whether or not to issue a definitive guideline, and, if so, the form such guidance should take. Until there is a definitive guideline issued by the Sentencing Council, although the proposals of the Sentencing Advisory Panel are of considerable interest as part of the background which sentencing judges may wish to bear in mind, the proposals themselves do not constitute guidance to sentencers which serve to displace, or amend or in any way undermine the authority of the guidance issued in guideline decisions of this court. They therefore provide no justifiable basis for interfering with a sentencing decision in which the sentencing judge applied the existing guidance of the court. ..."
38.	We note that at issue in the case of Valentas was a sentence imposed for a drugs offence.
39.	We emphasise that the draft guidelines, even as published, are intended to apply to first‑time offenders convicted after a trial.  Each of these offenders pleaded guilty to more than one offence committed over a period of weeks and each of them had previous convictions for possession of drugs. 
40.	Kevin Gaunt had previous convictions for supply of heroin and being concerned in the supply in circumstances not dissimilar to his present convictions.
41.	There are, we recognise, exceptional circumstances in which even those previously convicted might not be sentenced to an immediate term of imprisonment.  One such occasion arose in Attorney General's Reference Nos 68 and 92 of 2007 (re P) [2007] EWCA Crim 2634.  In that case the offender had already made a favourable impression upon medical staff during a drug rehabilitation requirement assessment period both as to his motivation and as to his successful start to the programme.  There had been a lengthy delay between arrest and sentence.  The sentencing judge had taken a specific course conscious that it was exceptional.
42.	In our view none of the present cases could be described as exceptional.  There was no ground for the belief that reduction in sentences for class A drug supply on the street was imminent.  We do not consider that it was properly open to the judge to sentence on the basis that it was.  
43.	Under the present arrangements the Sentencing Council publishes a draft guideline for a single consultation.  It does not follow that the draft will remain untouched when the guideline is finalised.  When the guideline is published, there will be a three month interregnum before the guideline will apply.
44.	Furthermore, it seems to us that there was not in any of the present cases mitigating features which could properly have justified non‑custodial sentences.  As the sentencing judge continued in his sentencing remarks at page 10 of the transcript:
"That is not to say that the offences that you committed are not serious because any kind of distribution, proliferation of class A drugs, you know the kind of misery it can affect people with.  Of course you clearly didn't know, because you were supplying to police officers, you do not know who it is that you are supplying in these circumstances and they may be first‑time users, they may be people who are going to get themselves hooked and into a life of the misery as at some stage happened to you.  So one can't overlook the severity of this kind of case ..."
45.	We accept the judge's finding that these offenders were not dealing for profit.  They did not carry their own stock. They might, at most, hope to gain a small quantity of drug to sustain their own habit.  In this regard, we draw attention to a decision of this court in Leeworthy [2010] EWCA Crim 464.  The offender pleaded guilty at the first opportunity to supplying heroin and cocaine.  He took undercover police officers to an address.  Supplied with money, the offender went inside and emerged with the drugs which he then handed over.  He had a bad criminal record, including ten convictions for simple possession of drugs.  He was treated, as were these offenders, as a facilitator.  He was in breach of bail and in breach of a suspended sentence for which he received a consecutive sentence.  His sentence was reduced in respect of that single offence to three years' imprisonment from four years.  
46.	In our judgment, the least sentences which, following pleas of guilty, were appropriate upon the authorities which applied to this sentencing exercise were as follows: Kevin Gaunt two and a half years' imprisonment concurrent upon each count with 121 days to count for the purposes of section 240 of the Criminal Justice Act 2003; Wayne Froud, 18 months' imprisonment concurrent on each count; and Tina Robson 18 months' imprisonment concurrent on each count.
47.	We grant leave to the Attorney General.  We shall quash the sentences imposed and substitute those to which we have just referred.  We make it clear that in setting the level of sentence which we will substitute we have taken account of the fact that each of these offenders had embarked upon a sentence while knowing that that sentence would be challenged in the Court of Appeal.  
48.	The offenders will surrender to custody.  Gentlemen, can you inform us, please, of the nearest police station? 
49.	MR ABRAHAMS:  My Lord, in respect of Gaunt I don't ‑‑ it is Sunderland Central Station but he is currently in the Magistrate Court as I understand this morning so hopefully a message can be passed on.
50.	LORD JUSTICE PITCHFORD:  Sunderland and? 
51.	MR ABRAHAMS:  Sunderland Gilbridge which is the central police station but I will ensure that those who instruct me contact the Magistrates' Court. 
(Pause)
52.	LORD JUSTICE PITCHFORD:  Gentlemen, a warrant shall be issued in each of these three cases today.  Of course, if surrender to custody takes place they won't be executed.
53.	MR ABRAHAMS:  Of course.
54.	LORD JUSTICE PITCHFORD:  Sunderland Gilbridge for Mr Gaunt.  For Mr Froud? 
55.	MR SPRAGG:  The same.
56.	LORD JUSTICE PITCHFORD:  And Miss Robson? 
57.	MR WISHLADE:  She is in custody so I assume the warrant will be sent there.
58.	LORD JUSTICE PITCHFORD:  Can you tell us when she was taken into custody? 
59.	MR SPRAGG:  I believe Tuesday.  I am not entirely certain.  
60.	LORD JUSTICE PITCHFORD:  Are you sure that she is still in custody?  
61.	MR WISHLADE:  I am assured that she is.  She was visited yesterday by her mother at Lower Newton Remand Centre and her next appearance is not until next week.
62.	LORD JUSTICE PITCHFORD:  Very well.
63.	In that case Kevin Gaunt and Wayne Froud will surrender to custody at Sunderland Gilbridge police station by 4.00 p.m. today if not already remanded in Gaunt's case by the court before whom he is appearing today.
64.	MR ABRAHAMS:  My Lord.  
65.	LORD JUSTICE PITCHFORD:  In the case of Tina Robson, whom the court believes is already in custody on remand, we make no order as to her surrender today, but a warrant will be issued for execution if it transpires that our information is erroneous.
66.	MR EMLYN-JONES:  My Lord, forgive me, there is, I am afraid, a small error in the consolidated final reference that I ought to correct as it found its way into my Lord's judgment.  In the consolidated final reference, paragraph 14, the paragraph that begins with the reference to the Arizona nightclub.
67.	LORD JUSTICE PITCHFORD:  Sorry, I am looking at the individual references.  Here we are.  14.
68.	MR EMLYN-JONES:  Yes, please.  That paragraph in the last sentence refers to the third offender giving directions.  That should be a reference to the first offender because Gaunt was not present on that occasion.  It was Tina Robson in the car.  I apologise, my Lord, that is entirely my fault.
69.	LORD JUSTICE PITCHFORD:  Just give me a moment. 
(Pause) 
70.	MR EMLYN-JONES:  I think my Lord said at that point in the judgment that it was Gaunt who directed Mel to Teesdale Avenue and it should be Robson.  
71.	LORD JUSTICE PITCHFORD:  You are quite right.  I will make that adjustment in the transcript.  
72.	MR EMLYN-JONES:  I apologise, because it is my fault.
73.	LORD JUSTICE PITCHFORD:  Thank you.