No. 2007/04938/A7
Neutral Citation Number: [2008] EWCA Crim 202
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Thursday 24 January 2008

B e f o r e:

LORD  JUSTICE  HOOPER

MR  JUSTICE  SILBER

and

MR  JUSTICE  UNDERHILL
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R E G I N A

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GARY  REID
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Mr T Nicholson appeared on behalf of the Appellant

Miss P Khanna appeared on behalf of the Crown
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Judgment

LORD JUSTICE HOOPER:  I will ask Mr Justice Underhill to give the judgment of the court.

MR JUSTICE UNDERHILL:
1.  On 9 August 2007, at the Wood Green Crown Court, the appellant pleaded guilty to one count of offering to supply a Class A drug (crack cocaine and heroin) and one count of theft.  On the following day he was sentenced by His Honour Judge Ader to five years' imprisonment on the first count.  No separate penalty was imposed on the second count.  He appeals against sentence with the leave of the single judge.

2.  The facts can be briefly stated.  On 6 February 2007, an undercover police officer was on an operation in Camden High Street.  He was approached by the appellant, who was not in fact a target of the operation, and offered a wrap.  The appellant indicated that he had a wrap in his mouth.  The officer agreed to buy and handed over £20.  The appellant said that he would return in a few minutes with the drugs.  It is not clear why that was necessary if he had indicated that he had drugs with him, but we need not resolve that puzzle for present purposes.  He returned about a quarter of an hour later, but he refused to hand over any drugs.  He accused the purchaser -- correctly, but this was purely fortuitous on his part -- of being a police officer.

3.  The appellant's plea of guilty was offered on 9 August 2007, at the plea and case management hearing, on the following written basis:

		"The defendant pleads guilty to both counts on the indictment on this basis:

		(1)	He did not have a wrap in his mouth at any stage on 6 February 2007.

		(2)	His intention in making the offer was to steal money and not at any stage to supply drugs to 'Paul' [the undercover officer]."

The Crown indicated that they did not accept point (1), but they took the view that it would make no difference to sentence whether or not it was correct.  The judge (His Honour Judge Lyons) agreed with that view.  It is thus a fundamental fact in this case that the appellant did not intend to supply drugs and was not in a position to do so.  He was nevertheless guilty of the offence because he had made an offer to supply drugs.

4.  The appellant is aged 41.  He is a long-term drug addict.  He has a history of nearly 60 previous convictions for about 100 offences going back to his teenage years.  He has served several custodial sentences, the longest being of three-and-a-half years.  He has seven previous convictions for offering to supply drugs, five for actual supply and three for possession.  Most of those offences concerned Class A drugs.  More specifically, he had three previous offences falling within the terms of section 110 of Powers of Criminal Courts (Sentencing) Act 2000, with the result that the judge was obliged to impose a minimum prison term of seven years (subject to a maximum discount of 20 per cent for the guilty plea) unless he concluded that it was unjust to do so.  If the maximum discount had been applied, that would have produced a term of just over five-and-a-half years.  The application of section 110 had apparently been overlooked by the Crown but was drawn to the attention of the court by the appellant's counsel at the earlier hearing.  Judge Lyons refused an application for an adjournment to obtain a pre-sentence report, but there was a short pre-sentence report before the court which had been prepared on an earlier occasion: it showed nothing of any significance for sentencing purposes.

5.  Before Judge Ader Mr Nicholson argued that this was a case where it would be unjust to impose the minimum term under section 110, having regard to various mitigating circumstances but in particular to the fact that there had never been any intention to supply and that the offence was in substance one of theft (or perhaps obtaining property by deception).  In his sentencing remarks the judge at first ruled that it would not be unjust to impose the minimum term, having regard to the appellant's appalling record of drugs offences.  But in the end the sentence which he imposed was below the minimum.  In passing sentence he said:

		"In my view, there is no injustice in applying the provisions of section 110 in your case.  The particular facts of this case, coupled with your history, in my view, require it.  If I am wrong in that conclusion, then I would consider appropriate a sentence in this case of five years' imprisonment; that is a level of sentence that has significance and a history in the supply of Class A drugs and the guideline cases on it.  In my view, bearing in mind the requirements of section 110 of the Act, the appropriate sentence should be very close to the figure I have stated, a little more; giving recognition in a small, extra discount, extra to the 20 per cent reduction for plea of guilty, because you -- through counsel -- alerted the court to the provisions of the Powers of Criminal Courts (Sentencing) Act.

		I am prepared and able to reduce the figure that I would have imposed under the Act to the same figure that I had indicated that I would have passed anyway."

6.  Mr Nicholson submits before us that, while the judge was right not to impose the statutory minimum term, the term of five years which he imposed was still wrong in principle and in any event manifestly excessive.  He refers us to the decision of this court in R v Prince [1999] 2 Cr App R(S) 419, to which Judge Ader was unfortunately not referred.  That was a case in which the appellant had sold to a police officer for £20 a wrap of white powder on the basis that it was cocaine, but which on analysis turned out to be crushed paracetamol.  He pleaded guilty to offering to supply a Class A drug and was sentenced at first instance to a term of 18 months' imprisonment.  It should be noted that, although he had a bad record for offences of dishonesty (including one for robbery), he had no previous drugs convictions.  This court allowed the appeal.  In giving the judgment of the court Holman J said:

		"The broad thrust of the argument for the appellant is that the criminality of the appellant's act was more akin to obtaining £20 by deception than to drug dealing and that the judge did not sufficiently take into account, although clearly he referred to it, that the appellant actually supplied paracetamol and knew that that was what he was supplying.  It is also argued that insufficient regard was given to the fact that in all the 13 days of video surveillance the appellant only made this one singe transaction.

		We agree with the broad thrust of those submissions.  In our view, it was important that the sentence here clearly reflected the fact that what the appellant in fact sold and supplied was the non-controlled and, relatively speaking, harmless drug of paracetamol; and in all the circumstances of this case a sentence of 18 months for that offence was too long.  We propose to discharge that sentence and substitute for it a sentence of 12 months' imprisonment."

7.  We regard the present case as for all practical purposes on all fours with Prince.  Although the appellant in Prince had no record of drug offences, he had a serious criminal record.  Although in the present case nothing was supplied, whereas in that case a harmless white powder was supplied, that appears to us to be a distinction without a difference.  It seems to us that the right course, having regard to the guidance given by this court in Prince, is to quash the sentence of five years' imprisonment and to substitute for it a term of twelve months' imprisonment.  The 49 days served in custody on remand will count towards that sentence.  The appeal is allowed to that extent.

8.  We should add that we are grateful for the assistance of Miss Khanna who appeared for the Crown at our invitation.

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