Afonso & Ors, R v

THE VICE PRESIDENT: We have heard three appeals together. There was to have been a fourth case, an Attorney-General's application under section 36 of the Criminal Justice Act 1988, seeking to challenge as unduly lenient a deferment of sentence, but yesterday afternoon the Attorney General, wisely, withdrew that application. These appeals provide an opportunity for this court to give guidance in relation to the sentencing of a particular group of offenders within the category of retail suppliers of Class A drugs identified in Dhajit [1999] 2 Cr App R (S) 142 and Twisse [2001] 2 Cr App R (S) 37. We take into account the guidance given in relation to the making of drug treatment and testing orders in Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R (S) 106; [2004] Crim LR 241.

Nothing which we say is intended to affect the level of sentence indicated by Djahit and Twisse for offenders, whether or not themselves addicts, who, for largely commercial motives, stock and repeatedly supply to drug users small quantities of Class A drugs: and, as was pointed out in those authorities, as well as other authorities, the scale and nature of the dealing are important when deciding the level of sentence. Nor does anything we say call into question the propriety of the levels of sentence for the supply of drugs in the circumstances dealt with in McKeown and Others (Attorney-General's References 13 to 18 of 2004 [2004] EWCA Crim 1885; The Times, 17th August 2004.

But there is a group of offenders who supply Class A drugs for whom we believe that the level of sentence indicated by Djahit and Twisse, namely in the region of six years following a trial, is disproportionately high and we think some review is called for. These are the offenders who are out-of-work drug addicts, whose motive is solely to finance the feeding of their own addiction, who hold no stock of drugs and who are shown to have made a few retail supplies of the drug to which they are addicted to undercover police officers only. An unemployed addict has, in practical terms, three means of financing his or her addiction - prostitution, theft or supplying others and sentencers should recognise that, in consequence, his or her culpability is likely to be less than that of many other suppliers. Furthermore, if they are shown only to have supplied undercover police officers and hold no stock for supplying others, the harm caused by their conduct is comparatively slight.

There will be some such adult and young offenders for whom a drug treatment and testing order will be appropriate in the circumstances indicated in Attorney-General's Reference No 64 of 2003, to which we have already referred. Where such an order is not appropriate, generally speaking, adult offenders in the category we have identified, if it is their first drugs supply offence, should, following a trial, be short-term prisoners, and, following a plea of guilty at the first reasonable opportunity, should be sentenced to a term of the order of two to two-and-a-half years' imprisonment. For young offenders, the custodial term is likely to be less.

It has long been recognised that this court has power to review existing tariffs upwards or downwards: see, for example, Avis [1998] 2 Cr App R (S) 197, Ollerenshaw [1999] 1 Cr App R (S) 65; Attorney-General's Reference No 3 of 1996 (Latham) [1997] 2 Cr App R (S) 10, and Kefford (2002] 2 Cr App R (S) 495. It accordingly would not be appropriate, for the reasons explained in Graham, [1999] 2 Cr App R (S) 312 at 315, for this judgment to be regarded as a basis either for applications for leave to appeal against sentence out of time or for references to this court by the Criminal Cases Review Commission.

We turn to the three appeals before us. As will appear, none of these appellants falls entirely within the group which we have identified. All of them supplied undercover officers, were addicted to a Class A drug and had no previous drug convictions, but Andrews had stock, Afonso and Sajid supplied more than one Class A drug, and Sajid's appeal depends primarily on disparity with his co-accused.

Afonso, who is now 37, pleaded guilty at Peterborough Crown Court on 16th January 2004 to a number of offences for which he was sentenced by His Honour Judge Coleman. There were four counts of supplying heroin, for which he was sentenced to five years' imprisonment on each concurrently, two counts of supplying crack cocaine, for which he was likewise sentenced to five years' imprisonment concurrently and concurrently to the sentences for heroin offences, and there was a further offence of being concerned in supplying heroin, for which he was sentenced to three years' imprisonment concurrently. His total sentence was therefore five years' imprisonment, and orders were made for forfeiture and disposal of the drugs under section 27 of the Misuse of Drugs Act 1971. He appeals against sentence by leave of the single judge.

The facts were these. In September 2003, police officers mounted an undercover operation targeting drug dealers in Peterborough. On 15th September 2003, an undercover officer entered a centre for the homeless asking for someone called Lucy and he met the appellant. They left together. In the ensuing conversation, the appellant asked if the officer was looking for heroin. In consequence, two telephone calls were made, a third male was met, and the appellant, who on this occasion had drugs in his possession, handed the officer a wrap of heroin in exchange for £10.

Three days later, on the 18th, the appellant supplied the officer with £20 worth of cocaine, which he obtained for another man, and he also arranged for another man to supply the officer with heroin. The next day, the 19th, the appellant supplied the officer with crack obtained from another man; on the 23rd he supplied the officer with £10 worth of heroin obtained from another man, and he did precisely the same again on the 25th September.

In passing sentence, the learned judge said that there was an issue as to what the precise role of the appellant was. His offending had been brought about by his £150 a day addiction to crack cocaine, but he was trying to rid himself of that addiction, which was to his credit.

The operation in the course of which the appellant had been arrested was directed at a further drug-dealing operation which had sprung up as a consequence of the closing down of an earlier operation in Peterborough. The judge described what the appellant and others were doing as "filling the vacuum" that the closing down of the earlier operation had caused.

The learned judge referred to the appellant's record. He has no previous convictions in relation to drugs, but he has a substantial record over a four-year period from late 1999, particularly of offences of shoplifting, for which he has been dealt with by the magistrates in a variety of ways, including, in 2001, the making of a drug treatment and testing order - an order which was revoked a few months later when a one-month sentence of imprisonment was imposed. Thereafter, he continued to shoplift. During 2002 and early 2003, a community punishment order, a community rehabilitation order and then sentences of imprisonment, the longest of which was three months, were imposed. In the autumn of 2003, he continued to shoplift, having a knife with him on one occasion, and sentences of seven days' imprisonment and by way of a deferred sentence were passed. It was against that background that these offences were committed in September 2003.

A pre-sentence report obtained for magistrates in relation to offences of theft in September 2003 assessed the risk of him reoffending as high and continuing to remain high unless he addressed his drug addiction. An addendum to that report in January 2004 said that there was a high risk of reoffending if the defendant, who at that time had stopped taking drugs, reverted to his old ways when back in the community.

On Afonso's behalf, Miss Gibbs stresses the plea of guilty at the earliest opportunity, the absence of drugs convictions from the appellant's record and the continuing drug-free state of the appellant in prison. She says that the appellant made no profit from these dealings, which were prompted by his addiction, though she accepts, of course, that he dealt with two different kinds of Class A drugs. She points out that, because the appellant had himself been an addict for some three years, that is to say addicted to crack cocaine, he knew a number of suppliers and therefore it is unsurprising that he sought, for others in the supplies which he made to these officers, a number of different sources of the drugs. She points out the relatively short period over which these drugs were supplied; though it is to be observed that they were supplied on virtually a daily basis. It is also apparent, both from Miss Gibbs' submissions and from the evidence in relation to the appellant's dealings with a man in a Mitsubishi motorcar, that the appellant was close to at least one source of supply.

Miss Gibbs contrasts the present case from Djahit, on the basis that there was no money in the appellant's possession, nor did he have any drug-dealing paraphernalia. She referred the court to Beevor [2001] 2 Cr App R (S) 362, where a sentence of five years was reduced to four in relation to an appellant who had pleaded guilty to supplying heroin. He was an addict who had supplied two different drugs - heroin and cocaine - and he had stocks of both. His supplies were not limited to undercover police officers.

With the assistant of Mr Magee on behalf of the prosecution, Miss Gibbs referred the court to the sentences passed on others with whom the appellant was involved. They were sentenced by a different judge. They were Abdezade, who received four years, having pleaded guilty on the day of trial; Pinto, who received four-and-a-half years after a trial in relation to the supply of heroin; and Thomas, who had a crack house in relation to the activities from which he pleaded guilty and was sentenced to a term of five-and-a-half years' imprisonment. Mr Magee accepts that all those three were higher in the chain than this appellant.

Mr Magee, in a written skeleton argument, helpfully referred the court to a number of pertinent authorities about which we shall pass a few observations.

Djahit, to which reference has already been made, was an addict who had a stock of drugs, both at his flat and on his person, and he was in possession of a list of names and addresses, running to some ten pages.

Twisse was dealing from home in Class A drugs, both heroin and cocaine, and did so for a period of months; and it is implicit, if not express, that he held stocks of drugs. He was addicted to heroin. He had a previous conviction for supplying drugs and he was subject to a conditional discharge in relation to a drugs offence at the time when he came to be sentenced.

Iqbal, [2000] 2 Cr App R (S) 119, had a stock of cocaine and he was not an addict. Four-and-a-half years was said to be the upper limit of what could be described as the existing tariff in relation to him.

Day, [2000] 2 Cr App R (S) 312, supplied cocaine, but he was also in possession of cannabis and ecstasy, and he was not an addict.

Barnett, [2003] 1 Cr App R (S) 102, was not an addict. He had previous convictions in relation to Class A drugs. He was on licence at the time of the offences and he did not make his plea at the first available opportunity.

Cargill, [1999] 2 Cr App R (S) 72, had a stock of crack and was "trying to make a living". He was not an addict and he behaved dangerously on arrest.

Devaney, [2002] 1 Cr App R (S) 478, supplied others in addition to police officers. He received orders on his mobile telephone. He had no previous convictions in relation to drugs but was described as a "career criminal". He was not addicted. He was on licence for other matters at the time of the relevant offences.

The submission which is made by Miss Gibbs, from which Mr Magee rightly does not dissent, is that, particularly in the light of the sentences passed on the other related defendants to which we have referred, a sentence of five years passed on this appellant was too long. We agree. That sentence is quashed and the appeal allowed in relation to all the five-year sentences of imprisonment in relation to heroin and crack cocaine. In substitution for those periods of five years the sentence will be one of three-and-a-half years' imprisonment concurrently in each case and concurrently also with the three-year sentence imposed for the offence of being concerned in supplying heroin. To that extent, his appeal is allowed.

We turn to Sajid. He was born in December 1979 and so is not quite 25. On 27th February 2004, at Warwick Crown Court, he pleaded guilty to a number of offences, for which he was sentenced by His Honour Judge Coles QC on 7th April 2004. They were four offences of supplying heroin and three of supplying cocaine. The sentence passed on each count concurrently was one of three years three months' imprisonment. Orders were also made under section 27 of the Misuse of Drugs Act 1971. He appeals against sentence by leave of the single judge.

A co-accused called Jamil, who pleaded guilty to counts of supplying heroin and cocaine - the same counts to which the appellant had pleaded guilty - was sentenced to four years' imprisonment on each, that four years to run consecutively to a period of two months imposed for breach of licence.

The facts were that, in the autumn of 2003, an undercover operation was mounted in Leamington Spa targeting drug dealers. The appellant and Jamil at that time lived in Birmingham and went daily to Leamington Spa for the purpose of dealing in drugs.

On 17th September, the officers telephoned a mobile number used by the appellant and Jamil and were told to go to a field, where they met Jamil, the appellant and another man. In consequence, Jamil supplied the officers with £20 worth of heroin and was seen to have six or seven more wraps in his possession.

The next day, the 18th, the officers met the men again at the same place and this time the appellant supplied £20 worth of heroin and crack.

On 20th September, by arrangement, the officers went again to the same place and again met the same people. This time the appellant supplied them with £10 worth of crack and Jamil supplied £10 worth of heroin.

On 2nd October, the officers met the men again in a car park. Jamil supplied them with crack and another unknown man supplied them with heroin. The officers paid Jamil £20 and again on this occasion saw that he had further wraps in his possession.

On 17th December, the appellant was arrested. He admitted in interview handing packages to the officers on 18th and 20th September, but at that time claimed not to know what was in them.

In passing sentence, the learned judge said that the appellant and his co-accused were fully aware of what they were doing, namely supplying Class A drugs on a commercial basis. The learned judge drew attention to the fact that it was not the first time that Jamil had been before the court for drug offences, that he had a poor record and, indeed, was in breach of licence at the time these offences were committed. The appellant, the judge accepted, had become addicted to drugs when at a particularly low period in his life. He did not, as the judge said, have as bad a record as Jamil and had no previous history of drug-related offending. He was now drug free and there was an impressive letter in support of him from a prison officer. In all the circumstances, the judge said, he should receive a lesser sentence than Jamil. To the records of the appellant and Jamil we shall in a moment return.

There was a pre-sentence report on the appellant indicating that the offences were committed whilst he was abusing drugs, but as he had, apparently, by the time of the report in March 2004 ceased drug use, there was only a medium risk of him reoffending.

The submission which is made by Mr Smith on behalf of Sajid is directed primarily to the disparity of the sentence passed upon this appellant when compared with the four-year sentence passed upon Jamil. The appellant is still, it appears, drug free in prison. Mr Smith stresses that this was not a case of the appellant making any commercial gain.

Mr Munro, on behalf of the prosecution, accepted that the Crown had always regarded Jamil as playing the greater role in these activities when compared with the appellant.

Bearing in mind that two Class A drugs were supplied and that Jamil on at least one occasion had a stock of drugs in his possession, the sentence of four years in relation to him may well have been a lenient one. But, in our judgment, the argument based on disparity is well founded. There are several reasons why the sentencing judge ought, in our judgment, to have drawn a greater distinction than he did between this appellant and Jamil. They include the fact that the appellant had only one previous conviction, for which he had been conditionally discharged, and he had no previous convictions in relation to drugs. Jamil, on the other hand, had on five occasions been convicted of possessing drugs, which included, in October 2002, heroin. Also, over a seven-year period, Jamil had many other convictions for dishonesty, violence and the possession of weapons. He had lost his liberty on several occasions, the longest sentence being for a total of three years, from which he had been recently released and was on licence at the time of the present offences. Furthermore, as we have said and as the prosecution accept, the appellant's role in these activities was subsidiary to that of Jamil.

Taking into account also that the only people shown to have been supplied by the appellant were police officers, that he is now drug free, and all the other circumstances of the case, we allow his appeal by quashing the sentences of three years and three months' imprisonment imposed concurrently by the learned judge and substituting for them sentences of two-and-a-half years' imprisonment concurrently in relation to each count.

We turn to Andrews. He was born in July 1978, is therefore 26 years of age, and he was of previous good character. On 3rd March 2004, at Bury St Edmunds Crown Court, he pleaded guilty on rearraignment and, on 14th May 2004, he was sentenced by His Honour Judge Holt to five years' imprisonment concurrently on each of five counts of supplying cocaine. Orders again were made under section 27 of the Misuse of Drugs Act 1971. He appeals against sentence by leave of the single judge.

The facts were that, in July 2003, an undercover operation was mounted by police officers targeting drug dealers, particularly those dealing with crack cocaine, in Ipswich. Two officers made contact with the appellant, and on five separate occasions, between 22nd July and 29th July, he supplied a total of 2.8 gms in exchange for £240.

On the first occasion, the appellant asked the officers to follow him slowly, and, eventually, he retrieved a bag from its hiding place in some weeds. From it he took two wraps, which he sold to the officers for £40. The officers noted that there were a number of other similar cellophane wraps in the bag. The officer asked the appellant for his mobile telephone number, which he gave, and he also told the officers that he was known as "Doggy". Other purchases were made following contact by the officers over the mobile telephone.

On 31st July, he was arrested at his home address and a mobile telephone was recovered. He said in interview that he was from Sierra Leone and had lived in Ipswich for about two years. He confirmed that the telephone was his, but at that stage denied supplying drugs. He claimed as part of his basis of plea that he had not supplied anyone other than the undercover police officers; but, as we have already said, the stock which he had demonstrated his ability to supply others. He was a user of crack cocaine.

There had been a telephone call on 23rd July (which it will be recalled is, between the dates of 22nd and 29th, when dealing took place) when he had told the officers he did not want to deal. But, as we have said, he did in fact supply the officers thereafter. The prosecution did not accept, for obvious reasons, that he only supplied drugs to undercover officers.

In passing sentence, the judge said that there had been five supplies over a seven-day period; these were examples of his criminality and it was clear that he was a commercial trader with access to considerable stock. He had not pleaded guilty at the earliest opportunity, but his good character was in his favour and regard was paid to a pre-sentence report in March 2004, which assessed the risk of him reoffending as low. The judge said that the number of offences and their clear commercial nature could not be overlooked.

On Andrews' behalf, Mr Goodman seeks to explain the plea of guilty on rearraignment by reference to difficulties in relation to disclosure and the audibility of certain tapes which had to be examined.

As was pointed out to counsel in the course of his submission, a defendant who defers admitting his guilt until such time as he has been able to investigate the strength of the prosecution case, when he has had the opportunity at an earlier stage of showing his remorse by pleading guilty in the knowledge of what he has done, cannot expect the same discount for a plea of guilty as one who pleads guilty at the earliest opportunity.

Mr Goodman draws attention to the industry which, in the period between his incarceration in May and the middle of August, the appellant has shown by achieving a variety of certificates in prison in relation to self-help and substance and alcohol awareness. He has also been awarded a certificate in relation to Desktop Publishing.

Mr Goodman stresses that no drug paraphernalia was found when Andrews' home was searched; that the total sale price of the drugs supplied to these officers was the comparatively modest figure which we earlier identified; and that the appellant is now drug free and is of previous good character. He is also, apparently, HIV positive.

On behalf of the Crown, Miss Dineen pointed out that, when interviewed, the appellant was shown a photograph which depicted the appellant, among others, but he at that stage denied that he was 'Doggy' and made no comment. She also draws attention to the circumstances of the first supply, indicating, as we have already said, that the appellant had a stock of drugs for supply to persons other than the police officers who made statements about these matters.

Taking all the circumstances which we have identified into account, we take the view that the sentence of five years imposed by the learned judge did not sufficiently reflect the appellant's plea of guilty, albeit late, his good character and the aspect of his addiction to which we have referred. Accordingly, Andrews' appeal is allowed. The sentence of five years imposed concurrently on each of the five counts of supplying cocaine is quashed. There is substituted for it a sentence of four years concurrently on each count.