Neutral Citation Number: [2009] EWCA Crim 1349
Case No. 2009/01432/A7
IN THE COURT OF APPEAL
CRIMINAL  DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Date: Thursday  11  June  2009

B e f o r e:

MR  JUSTICE  COLLINS

and

MR  JUSTICE  OWEN
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R E G I N A

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MOHAMMED  KHALIL
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Mr S Rippon appeared on behalf of the Appellant

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J U D G M E N T

MR JUSTICE COLLINS:  Mr Justice Owen will give the judgment of the court.

MR JUSTICE OWEN:
1.  On 23 January 2009, in the Crown Court at Wolverhampton, the appellant, Mohammed Khalil, pleaded guilty to an indictment containing four counts.  He was sentenced to a total of two years' imprisonment.  The period of 21 days he had spent in custody on remand was ordered to count towards the sentence.  He appeals against sentence with the leave of the single judge.

2.  The facts can be shortly stated.  At about 6am on 7 November 2008 police officers stopped the appellant after it was noticed that he was smoking a cigarette which contained cannabis.  When searched he was found to be in possession of a bag containing 1.66 grams of cannabis.  He was arrested and taken to a police station, where he handed over a lock-knife.  A second bag containing 3.1 grams of cannabis were recovered from him.  He was strip-searched.  Four bags of cannabis and a wrap of heroin were found concealed in his anus.

3.  The appellant's home was duly searched.  Electronic scales, a bag containing cannabis, an air rifle and pellets were recovered.  In all, 15.6 grams of cannabis with a street value of £170.73 were recovered.

4.  Those facts gave rise to four charges.  Count 1 alleged possession of cannabis with intent to supply.  It related to the quantities of cannabis found on the appellant's person and at his home address.  On that count Her Honour Judge Bush imposed a sentence of twelve months' imprisonment.  On count 2 (possession of heroin) she imposed a sentence of 18 months' imprisonment.  On count 3 (having a bladed article) she imposed six months' imprisonment, consecutive.  On count 4 (possession of an air rifle and pellets) she imposed a sentence of six months' imprisonment, concurrent to the sentence imposed on count 3, making a total sentence of two years' imprisonment.

5.  The appeal is directed solely to the sentence of 18 months' imprisonment imposed on count 2.  It is submitted that it is manifestly excessive, bearing in mind that it involved a very small amount of heroin which was in the appellant's possession for his personal consumption, he having been a heroin addict for many years.  There was no evidence before the court either as to its purity or as to the street value.  However, in interview the appellant had said that it was £5 worth.

6.  In passing sentence the judge observed that she was sentencing on count 2 for possession of heroin with intent to supply.  That was an error.  The appellant was indicted with simple possession.  Her error was not brought to her attention.  Had it been, we have little doubt that she would not have imposed a sentence of 18 months' imprisonment, given the very small quantity of heroin involved and the fact that it was in the appellant's possession for personal consumption.

7.  In those circumstances we are satisfied that that component of the total sentence was manifestly excessive.  It will be quashed.  We substitute for it a sentence of nine months' imprisonment, to be served concurrently with the sentence imposed on count 1.  The effect of allowing the appeal in that manner is that the total sentence will be reduced from two years' imprisonment to 18 months' imprisonment.  The 21 days spent on remand will count towards the sentence.  To that extent this appeal is allowed.

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