Neutral Citation Number: [2018] EWCA Crim 1156
Case No. 2018/01231/A3
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

ATTORNEY  GENERAL'S  REFERENCE
UNDER  SECTION  36  OF
THE  CRIMINAL  JUSTICE  ACT  1988

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday  10th  May  2018

B e f o r e:

LORD  JUSTICE  TREACY
	
MRS  JUSTICE  JEFFORD  DBE

and

HER  HONOUR  JUDGE  MUNRO  QC
(Sitting as a Judge of the Court of Appeal Criminal Division)
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R E G I N A
 
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WESLEY  USHERWOOD
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Mr J Polnay appeared to make the Application

Miss D Collins appeared on behalf of the Offender 
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J U D G M E N T(Approved) 

LORD JUSTICE TREACY:
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.  

2.  On 23rd February 2018 in the Crown Court at Worcester the offender was sentenced to a total of four years' imprisonment.  For possession of cocaine with intent to supply (count 2) he received three years' imprisonment.  For possession of heroin with intent to supply (count 3) he received three years' imprisonment.  For producing crack cocaine (count 4) he received three years' imprisonment.  All of those sentences were ordered to run concurrently with each other.  However, a consecutive term of one year's imprisonment was imposed for breach of a suspended sentence passed at the same Crown Court by the same judge on 27th April 2017.  In relation to a summary offence of obstructing a constable, which had been sent to the Crown Court and admitted, the judge passed no separate penalty.

3.  The suspended sentence of 27th April 2017 had been imposed for an offence of possession of cocaine with intent to supply.  The sentence had been one of two years' imprisonment suspended for two years.

4.  The matter was re-listed on 17th April 2018 under the slip rule.  At this hearing the sentences of imprisonment were varied to sentences of detention in a young offender institution, given the offender's age.  He was aged 20 at the time of the commission of the offences on the indictment, as well as at the time of sentence.  In addition, a further breach of a suspended sentence was dealt with; it should have been dealt with on the earlier occasion.  On 5th May 2017 the magistrates' court had imposed a sentence of twelve weeks' imprisonment, suspended for twelve months, for possession of a prohibited article in prison, namely, a mobile phone.  The judge imposed no separate penalty for this breach.  By then it was also apparent that a further offence of possessing criminal property (count 5) had not been dealt with correctly.  The offender had in fact pleaded guilty to that offence, and the prosecutor below had misinformed the judge at the hearing about that and had purported to offer no evidence.  In fact, no such direction was made by the judge.  The court record wrongly recorded a sentence of three years' imprisonment on that count, when the judge had made no such order.  At the slip rule hearing, the judge imposed no separate penalty for that offence and ordered the record to be amended.

5.  The facts of the present matter show that on 23rd November 2017 police stopped a vehicle in Worcester with the offender and a young woman inside.  Both gave false names and addresses, which led to the charge of obstructing a constable.  When the female's identity was ascertained, her flat was searched.  The police found documentation there in the offender's name, as well as drug-related items.  There were 63 grams of cocaine, of which almost 53 grams was at 96 per cent purity.  Some of that had been split into single deals.  It had an estimated street value of £5,870 (count 2).  There was also 122 grams of heroin, all of it at over 50 per cent purity, some of it split into single deals.  The estimated value of this drug was over £12,000 (count 3).

6.  Count 4 related to the production of crack cocaine.  It was evidenced by the finding of 143 grams of phenacetin (a common cutting agent), equipment bearing traces of items consistent with production of crack cocaine and a number of wraps of crack cocaine which had been cut with phenacetin.

7.  When they were stopped by the police, the offender and the young woman were in possession of £1159 in cash.  A further £1791 was found at the flat.  The cash was the proceeds of drug dealing (count 5).  A mobile phone belonging to the offender revealed that it had been used for the commercial supply of heroin and crack cocaine to users.  The offender had swallowed the SIM card prior to his arrest.

8.  In interview the offender accepted that he was a Class A drug dealer and that he had travelled to Worcester from Birmingham for the purpose of selling drugs.  He estimated that he sold £1,000 worth of drugs in Worcester each day.  He claimed to have a drugs debt of £12,000.

9.  The offender has been convicted in the past of some 23 offences.  Those of particular relevance are:

(i)  On 1st April 2016, for possession of cocaine and crack cocaine with intent to supply, he was sentenced to sixteen months' imprisonment.  

(ii)  He was released from that sentence in December 2016.

(iii)  Whilst serving that sentence, he was found in prison in possession of a mobile phone.  He was sentenced on 5th May 2017 at the magistrates' court to twelve weeks' imprisonment suspended for twelve months.

(iv)  On 27th April 2017, for offences of possession with intent to supply cocaine, heroin and crack cocaine, and possession of two bladed articles, he was sentenced to two years' imprisonment suspended for two years.  There were requirements of 150 hours' unpaid work, a twelve month drug rehabilitation requirement and a 20 day rehabilitation activity requirement.  Sentence was imposed on that occasion by the same judge who dealt with the matter before the court today.  
10.	During the sentencing hearing in relation to the present matter, the judge observed that the matters advanced before him in mitigation on this occasion were identical to those advanced on 27th April 2017.  The offences dealt with in April 2017 had been committed in February 2017.  The judge had available a pre-sentence report.  It assessed the offender as being at a high risk of offending and noted that in relation to the suspended sentence imposed in April 2017, the offender's compliance was very low.  He had completed only 45 minutes of the work requirement.  He had not engaged with the drug treatment provider and had attended only five out of eleven days of rehabilitation that had been offered.  The report showed that the offender was a drug user, but that he had ceased once remanded in custody.

11.  The offender's previous criminal record has significant consequences for him.  First, the present matters constitute a third drug conviction, so that section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 comes into play.  There is a mandatory minimum term of at least seven years (subject to a maximum 20 per cent credit for a guilty plea), 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 pass such a sentence.

12. The judge ultimately held that it would be unjust to apply section 110 and he passed sentences at a lower level.  The transcript shows that his initial view was that he must apply section 110.  However, Miss Collins, who has also appeared before us today, persuaded him to change his mind.  The reasons advanced were that, having been released from custody to the Birmingham area where he had previously been involved with drugs, the offender felt that he had little choice but to offend in order to reduce his drugs debt.  Reliance was also placed on his age.  The judge said that, even with a reduction for the guilty plea, the application of section 110 would result in a long sentence for a young man of 20 years of age serving his first significant prison sentence.  The judge had also received a letter written by the offender in which he expressed regret and blamed a lack of support after release, as well as mentioning the matters referred to above.

13.  We have to say that the judge's reasons for not applying section 110 were wholly inadequate.  In R v Lucas [2012] 2 Cr App R(S) 14 this court held that a judge was not entitled to treat perfectly normal circumstances (youthfulness, being sucked into gang culture, being under pressure to continue to pay drug debts) as "particular circumstances" justifying the non-imposition of the mandatory minimum term.  In a slightly different field, in Attorney General's Reference No 115 of 2015 (R v Greenfield) [2016] 2 Cr App R(S) 23 this court held, in relation to the mandatory provisions of section 51A of the Firearms Act 1968 at [31]:

"There has been a clear steer from this court in recent years that the word 'exceptional' is not to be diluted; sympathy for an offender is not enough to prevent a judge from doing their statutory duty."

We recognise that the test to be applied under the 1968 Act is slightly different from that which applies in this case, but the sentiments expressed there, in our view, have a degree of force.

14.  In addition, we point to the judge's comment at the hearing below that the matters raised before him were identical to the mitigation advanced on the previous occasion which had led to the suspended sentence which was not then complied with.

15.  Mr Polnay, for the Solicitor General, submitted that the sentences passed were unduly lenient for the following reasons:

(a)  Section 110 should have been applied.

(b)  In any event, a sentence of at least seven years' detention before credit for the guilty plea was appropriate, having regard to the offences committed on this occasion.  The Sentencing Council's guideline shows that in a drugs supply case involving a category 3 "significant" role, there is a starting point of four years six months, with a range from three years six months to seven years' custody.  There is then the production of crack cocaine to be considered in addition.

(c)  Given minimal compliance with the suspended sentence imposed in April 2017, the judge was wrong to activate only twelve months of the suspended sentence.

(d)  The judge was wrong not to impose any penalty for breach of the suspended sentence imposed in May 2017.

16.  We observe that in the case of suspended sentences paragraph 8(2) of Schedule 12 to the Criminal Justice Act 2003 requires the court to make an order activating the suspended sentence in whole or in part, unless it is of the opinion that it would be unjust to do so in all the circumstances.

17.  Miss Collins, for the offender, argued that the sentence was lenient, but not unduly so.  She referred to the history of matters which had persuaded the judge below to take the course he did.

18.  We agree with Mr Polnay's submissions that the minimum sentence provisions apply in this case and that the judge's conclusion was incorrect for the reasons set out above.  There were, in our judgment, no circumstances sufficient to justify departure from the statute.  Quite apart from the minimum term provisions, this drugs offending would have attracted in any event a sentence of at least seven years' custody prior to the consideration of credit for a guilty plea.

19.  We turn next to the question of the suspended sentences.  Normally, where a suspended sentence has been passed and an offender re-offends in a serious and similar way (as was the case here) and where that offender has largely failed to comply with requirements imposed, a full activation of the suspended term would be entirely appropriate.  In this particular case, however, it seems to us that the requirements of totality come into play, given the substantial sentence appropriate for the drugs matters.  We therefore do not propose to interfere with the judge's decision to activate only twelve months of the April 2017 suspended sentence.  That should, however, run consecutively to the sentences on the indictment offences, as the judge ordered.

20.   In relation to the May 2017 suspended sentence, the judge should have dealt with it as required by Schedule 12, instead of passing no separate penalty.  It was not unjust to activate that suspended sentence.  We will, therefore, order its activation in full (twelve weeks), but in the interests of totality order it to run concurrently with the other sentences.

21.  It is clear from the foregoing that we have concluded that the sentence imposed below was unduly lenient.  We therefore give leave and amend the sentences below as follows: on counts 2, 3 and 4, there will be sentences of 67 months' detention in a young offender institution, to run concurrently with one another in substitution for the three years imposed below.  That gives the maximum available amount of credit on a seven year term for the guilty plea, as permitted by section 110.  The sentence passed for the breach of the suspended sentence of 27th April 2017 remains unchanged at twelve months' detention, to run consecutively.  The sentence passed for breach of the suspended sentence of 5th May 2017 is now one of twelve weeks' detention in a young offender institution in place of no separate penalty.  It will run concurrently to the other sentences.  The effect of this is that the offender will now serve a total of six years and seven months' detention in a young offender institution, in place of the four years imposed below.

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