Attorney General's Reference No. 110 OF 2004

LORD JUSTICE JUDGE: This is a reference by the Attorney General under section 36 of the Criminal Justice Act 1988 of a sentence imposed on Christopher Keylock in the Crown Court at Gloucester by Mr Recorder Still on 30th July 2004.

The offender is 35 years old. He was born in 1968. He has a single minor previous conviction relating to drug offences, which was in 1990, but he has been before the court on previous occasions without having been made subject to a custodial sentence. On this occasion he was before the court having pleaded guilty to possession of drugs of class A with intent to supply. The sentence was 40 hours' community service to run concurrently with a Community Service Order of 120 hours imposed on 28th June 2004 in the Crown Court at Salisbury for an offence of theft.

The facts are very simple. On 23rd March 2004 police officers, acting on information, called at an address which was occupied by the offender and his parents. In a cupboard belonging to the offender the police found a package wrapped in clingfilm. The contents of the package were analysed. It was found that they contained 13.9 grammes of powder which contained 39 per cent heroin.

The offender was arrested and interviewed. His interview formed the basis of an acceptance of his plea of guilty. He said that he was looking after the package for someone else. He had agreed to do that because he owed some money and he had been threatened. He had received the package some 24 hours before it was found by the police. He had not looked inside it, but he had assumed that the package contained heroin or crack cocaine.

The facts of the offence speak for themselves. The mitigation was that the offender had pleaded guilty at the first available opportunity and that his previous record in relation to drugs was effectively to be disregarded.

The problem with the case arose from the appearance at Salisbury Crown Court. Effectively the sentencing judge at Gloucester decided that the proper way to deal with the offender for the offence relating to drugs was to link it to the decision at Salisbury to impose a non-custodial sentence for an offence of theft.

In our judgment, that was wrong. Wrong because it is quite clear that Salisbury Crown Court dealt with the theft on its own, knowing of the court appearance which was due to take place at Gloucester, and making it clear that the court was dealing exclusively with the theft offence. There was no expectation of any kind created to indicate to the offender that on his subsequent appearance he could expect, or might even reasonably begin to expect, a non-custodial disposal.

Such a sentence was unduly lenient. This case ought to have been dealt with by way of a custodial sentence. We have reflected on the facts as they appear to us, including the basis of plea. We have commented in the course of the hearing of our concern that the Crown accepted that basis of plea. Nevertheless we must take it into account when deciding the appropriate level of sentence, acknowledging the importance of the principle of double jeopardy.

Reflecting on all those matters, we have concluded that the appropriate sentence now is one of 18 months' imprisonment. That sentence will start to take effect from the day when this offender is arrested. At present he is at large. Apparently his whereabouts are not known to those who act for him in this reference. As soon as he is discovered and arrested, the sentence will start to run. Until then it will not.

MISS WHITEHOUSE: My Lord, it has become apparent to me that Mr Keylock, who was thought to be at large, is in fact not at large. He was arrested some weeks ago and is now on conditional bail at his home address. The Court indicated earlier that his sentence should take effect when he is arrested.

LORD JUSTICE JUDGE: The sentence will take effect from today. Tomorrow perhaps.

MISS WHITEHOUSE: May he be ordered to surrender to the police station.

LORD JUSTICE JUDGE: He will surrender to the police either by 4.30 this afternoon -- if you know where he is, by 4.30 this afternoon and if he does that his sentence will start today. Thank you very much for drawing it to our attention.