Davies & Ors, R v

THE VICE PRESIDENT: As the result of an undercover police operation, Operation Belarus, in the Pontypridd area of South Wales, starting in February 2004, these 10 appellants or applicants were all sentenced at Cardiff Crown Court to terms of imprisonment between three-and-a-half and 5 years for a variety of offences involving the supply of heroin. All were sentenced by His Honour Judge Durham Hall QC on either the 2nd or 23rd August 2004, that is shortly before this Court gave judgment on 9th September 2004 in R v Afonso & Ors [2005] 1 Cr App R(S) 560, [2004] EWCA Crim 2342. That authority was not before the Single Judges who in some of these cases refused leave to appeal. Five other defendants, similarly sentenced as a result of the same operation, have already had their sentences reduced by this Court in the light of Afonso. They are R v Doggett & Owens [2004] EWCA Crim 3527, whose sentences of five and four-and-a-half years were respectively reduced to two-and-a-half and 3 years, R v Decino [2005] EWCA Crim 333, whose sentence was reduced from 4 years to two-and-a-half years and R v Stephen Jones & David Jones [2005] EWCA Crim 475, whose sentences of four-and-a-half years were both reduced to two-and-a-half years.

It is apparent from what we have already said that there is no possible general criticism of the sentencing judge for the level of sentences which he imposed which were in line, at that time, with the decisions of this Court. But in Afonso this Court reduced the level of sentence appropriate for a limited group of Class A drug suppliers, which is identified in paragraph 3 of the judgment in Afonso in these terms:

It is apparent from that authority that so, far as Afonso himself is concerned, his sentence was reduced from 5 years to three-and-a-half years' imprisonment. In the light of what the Court said in the course of its judgment, that is explicable by virtue of his criminal record, quite aside from drugs offences (see paragraph 12 and also the reference to antecedents in paragraph 38). What was not expressly said in Afonso and what we now make clear is that the sentence level which was indicated of the order of two to two-and-a-half years' imprisonment was intended for those with no criminal record. Those with significant criminal records, even without prior drugs convictions, do not have the mitigating factor of good character which is, of course, material to the sentencing process. They are therefore likely to receive a somewhat higher sentence, as the case of Hall, Evans and Forward before us today illustrates.

The principal question at the heart of these appeals and applications is whether the defendant in question is or is not within the group narrowly identified in paragraph 3 of the judgment in Afonso.

We turn to the individual cases. Tanya Davies pleaded guilty to three offences of supplying heroin and she was sentenced to four-and-a-half years' imprisonment on each of the three counts concurrently. She seeks, and we have granted, an extension of time in which to apply for leave to appeal and leave to appeal against sentence, following refusal by the Single Judge. A co-accused called Nicholas Cottier pleaded guilty to possessing heroin and admitted being in breach of a community rehabilitation order: he was sentenced to 12 months' imprisonment.

As part of Operation Belarus, on 19th February 2004 two undercover officers visited the house of another of these defendants, Miss Gulliford, and it was arranged by her that they would go to the home of Tanya Davies, this appellant. The officers went to the appellant's home. There were several people there, including a woman called Emma Greensitt, who subsequently sadly died as an indirect consequence of the illegal use of drugs. The co-accused, Cottier, to whom we have referred, admitted the officers to the house. He was clearly under the influence of drugs. While the officers were there, the appellant, Davies, supplied them with 0.056 grams of heroin of 30% purity. There was some discussion about drugs.

On 25th February Miss Davies was contacted by one of the undercover officers to whom she had given a telephone number. As a result, she offered to supply him with three bags of heroin for £25 and invited the officers to travel to a supermarket for the purposes of supply. On arrival there, a further telephone call was made and the appellant, Davies, gave the officer further directions. At the further venue, she supplied one of the officers with 0.141 grams of heroin for £25 and two further bags of heroin were supplied in exchange for some DVDs, a bottle of perfume and a packet of cigarettes.

The basis of this appellant's plea was that she had been addicted to heroin for the last 4 years and had been involved in a relationship with her co-defendant, who was also a heroin addict. The procedure was for the two of them to pool their money, to buy heroin to fund their habits and this appellant accepts that she supplied officers, believing them to be heroin addicts. She specifically denied any supply to the woman to whom we have referred who died. She accepted that she had obtained money and other goods on the three occasions to which we have referred, for her benefit and the benefit of Cottier.

She is now 24 years of age. She had appeared before the court on some six occasions prior to the present since 1997, for offences which, in 2001 and twice in 2003, included offences of simple possession of Class A drugs on three separate occasions. She had always previously been dealt with by non-custodial penalties.

A pre-sentence report upon her indicated that her offending was inextricably linked to her misuse of heroin and that, until her addiction to that drug was addressed, there would be a high risk of her re-offending. She had, encouragingly, remained drug free while on remand.

On her behalf, Miss Reece conceded that custody was correct in principle, but she submitted that four-and-a-half years, in the light of Afonso, was too long. She stressed the guilty plea at the first opportunity, the limited basis of the plea to which we have referred, the appellant's heroin addiction, the fact that she had no stock and the fact that she was not a commercial supplier.

There is, in our judgment, force in her submission. The sentence of four-and-a-half years' imprisonment which was passed concurrently on each count in the indictment is quashed and this appellant's appeal is allowed to the extent that a sentence of two-and-a-half years is substituted for the four-and-a-half years, concurrently on each count in the indictment.

We turn to Hall and Picton. Hall pleaded guilty to two counts of supplying heroin and was sentenced to four-and-a-half years' imprisonment on each concurrently. Catherine Picton pleaded guilty to being concerned in the supply of heroin and was sentenced to three-and-a-half years' imprisonment. No order was made for breach of a 12 month conditional discharge which had been imposed on her on 11th June 2004, by magistrates, for three offences of theft. They, before this Court, renewed their applications for leave to appeal against sentence, following refusal by the Single Judge, and those applications were granted by this Court.

On their behalf, Mr Baker submitted that they had been targeted not as drug dealers but as drug suppliers because they were approached by undercover officers at a time when they were visiting a drug treatment centre. It is to be observed that that form of approach was by no means uncommon in relation to Operation Belarus. Mr Baker submitted, somewhat faintly, that the activity of these appellants was not carried out for profit.

It is necessary, in that context, to refer to the facts. On 1st March 2004, at about 4.00 pm, two undercover officers struck up a conversation with these two appellants. Hall said he would be able to arrange the sale of some heroin and asked how much they required. It was agreed that three separate bags would be purchased for £25 and the money was handed to him to enable the purchase to take place. Ten minutes later, having gone off to purchase the drugs, Hall returned. He said he had only been able to get one package and he handed that, which contained 0.033 grams of heroin, over to the officers together with £15 of their money which he returned. Then Miss Picton, who was sitting in the officers' car, arranged a further meeting. About midday the following day the officers met up again with these two appellants, who agreed to sell them heroin later that day, because, they said, they were awaiting delivery of the drugs from Bristol. They duly met later in the afternoon. Money was handed over to Hall, who went off in a motorcar to buy the drugs, being reminded by Picton to buy some for them as well. A little later, Hall returned and supplied one of the officers with 0.138 grams of heroin at a high level of concentration, namely 53%. There were conversations recorded in covert tape recordings which indicated that both the appellants were themselves drug users and active on the drugs scene.

In passing sentence, the judge referred to one particularly grave feature of the case being the high level of purity of one of the deals. He also referred to the large number of Hall's previous convictions to which, in a moment, we shall come, and he referred to Picton's breach of the conditional discharge in relation to which, as we have indicated, he said that no action would be taken. He also drew attention to the fact that Picton was the subject of a Drug Treatment and Testing Order.

Hall was born in September 1972. He has many previous convictions since 1989, mostly for dishonesty and minor violence. He has been sentenced to prison many times, the longest period being for 2 years in 2003. In relation to drugs, he has two offences for possession of heroin and amphetamine, for which he was placed on probation in 1999. Picton was born in June 1965. She likewise has many previous convictions since 1980, mostly for dishonesty and mostly dealt with by way of non-custodial sentence, although she received 9 months in 1998 for forgery and other offences relating to the obtaining of drugs. Her only drugs offence as such was possession of cannabis, for which she received a seven day concurrent sentence in 1998.

There were pre-sentence reports on both these appellants. That on Hall recommended assessment for suitability for a Drug Treatment and Testing Order and said that there was a high risk of him re-offending unless he addressed his addiction to drugs. The report on Picton indicated that her response to the previous Drug Treatment and Testing Order had been poor, and until she addressed her addiction, there was a high risk of her re-offending.

Mr Baker submitted that the sentences of four-and-a-half and three-and-a-half years imposed respectively on these two appellants were excessive in the light of Afonso.

With that submission we agree. Taking into account all the circumstances of these offences, including the records of these two appellants, the sentences imposed in the court below, in relation to each of them, are quashed. In place of the four-and-a-half year sentence imposed on Hall on the two counts concurrently, there will be a sentence of three-and-a-half years' imprisonment. In the case of Picton, in place of the three-and-a-half years, there will be a sentence of two-and-a-half years' imprisonment. To that extent, their appeals are allowed.

We turn to Evans. He pleaded guilty to four counts in the indictment: one of offering to supply heroin, one of supplying heroin, one of possessing heroin with intent to supply, in relation to each of which three offences he was sentenced to four-and-a-half years' imprisonment concurrently, and one of possessing heroin in relation to which he was sentenced to 9 months' imprisonment concurrently. The total sentence therefore was four-and-a-half years' imprisonment. A further count of possessing heroin with intent to supply was ordered to remain on the file on the usual terms.

He appeals to this Court by leave of the Full Court, the Single Judge having refused leave to appeal against sentence. His co-accused, Beth Pattenden, who pleaded guilty to one count of being concerned in supplying heroin was sentenced to 2 years' imprisonment.

The facts in relation to this appellant were that, at about 10.45 am on 18th February 2004, undercover officers were approached by him. During the conversation he indicated that he was meeting someone in a public house who would have heroin. He asked the officers what they were after and an order was placed for two £10 bags. The appellant told the officers to wait outside the train station where he would meet them and make the supply.

On 3rd March an undercover officer made contact by telephone with Beth Pattenden and it was agreed that she and the two officers would travel to Aberdare to buy heroin. Two large foil wraps, each containing five bags, were bought for £85. They were found to contain a total of 0.281 grams of heroin of 22% purity. That evening, on returning from Aberdare, officers arrested this appellant, who was seen to throw away three foil wraps which, on investigation, contained 0.141 grams of heroin of 23% purity. In the living room of the house where he lived a box was recovered which contained a total of 0.098 grams of heroin of 22% purity. The Crown accepted that they were drugs for this appellant's own use.

In passing sentence, the learned judge referred to this appellant's very substantial previous criminal record. He was born in December 1977 and since 1993 he has appeared on many occasions, mostly for offences of dishonesty and minor violence. He has lost his liberty many times, the longest period being for two-and-a-half years in 2000. At the time of the offences presently being considered, he was subject to two concurrent Drug Treatment and Testing Orders made in mid 2003, for burglary and theft. He has no previous convictions for possessing or supplying drugs.

A pre-sentence report referred to the death of a friend of the appellant through an overdose in 2002, which had led to the appellant seeking and receiving, as we have indicated, a Drug Treatment and Testing Order. He was taking methadone daily at the time of the report in August 2004 but his addiction to alcohol remained a problem. When his methadone was stopped he suffered withdrawal symptoms and, thereafter, in part at least because his partner was using heroin, he returned to using that drug himself. He was, however, showing a maturing attitude towards substance abuse. There was a high risk of him re-offending. He had made progress while subject to the Drug Treatment and Testing Orders and was no longer using heroin but was prescribed drugs by his general practitioner and alcohol remained a problem.

On his behalf, Mr Taylor submits that notwithstanding the monumental problem, as he rightly described it, in relation to the supply of drugs in the area to which this case relates, the sentence passed upon Evans was excessive in the light of Afonso.

We agree. The sentence of four-and-a-half years imposed concurrently on counts 1, 2 and 3 is quashed. In substitution therefor, there will be a sentence of three-and-a-half years' imprisonment on each count concurrently. That sentence will be concurrent with the 9 months imposed on count 7. This appeal therefore is allowed to the extent that the total sentence now is one of three-and-a-half years rather than four-and-a-half years.

We turn to Edwards. He pleaded guilty to one count of supplying heroin and was sentenced to 4 years' imprisonment. He sought from this Court and obtained an extension of time of 5 months and leave to appeal against sentence following refusal by the Single Judge. A co-accused called Decino, who pleaded guilty to the same offence and received the same 4 year sentence, as we indicated at the outset of this judgment, had his sentence reduced by a different constitution of this Court to one of two-and-a-half years' imprisonment.

The facts were that, on 11th February 2004, two undercover officers contacted this appellant, Edwards, in Taff Street, Pontypridd. The appellant agreed to supply them with heroin. He took them to a park and, in some public toilets, supplied a £20 wrap of heroin which was found to contain 0.161 grams of heroin of unusually high purity, namely 40%. The appellant was arrested on 23rd March in connection with other offences and in interview, at that stage, he admitted meeting the two officers and discussing drugs but denied supplying them with drugs.

In passing sentence, the learned judge indicated that no distinction could, in his view, properly be made between Edwards and Decino.

Edwards was born in May 1981. Since 2002 he has been a persistent shoplifter, no doubt primarily to feed his addiction. He has only one previous drug conviction, namely for possession of cannabis in 2000. But an 18 month Drug Treatment and Testing Order was made on him in 2002. The pre-sentence report upon him indicated that he was not suitable for a further DTTO. The appellant expressed regret for his actions. There was expressed in the report a medium risk of him re-offending but he was motivated to change and to address his drug misuse. He had displayed a positive attitude to a community rehabilitation order but had breached such orders in the past.

On his behalf, Mr Leathley sought to draw a distinction between this appellant and Decino on the basis that Decino had been to Bristol to obtain drugs, whereas there was no evidence that this appellant had himself done so. Mr Leathley submits, rightly, that Edwards is within the category identified in Afonso. Like the sentencing judge, we see no material distinction between Edwards and Decino. The sentence imposed upon him, like the sentence imposed upon Decino, should be quashed and, in place of the 4 year sentence, there will be substituted a sentence of two-and-a-half years' imprisonment. To that extent, his appeal is allowed.

We come to Bevan. He pleaded guilty to two offences of offering to supply heroin and was sentenced to four-and-a-half years' imprisonment on each concurrently. The sentence was also expressed to run concurrently with a sentence of two-and-a-half years' imprisonment for robbery, which had been imposed on 11th March 2004, on which date the applicant had apparently spent approximately three-and-a-half months in custody.

He renews his application for leave to appeal against sentence following refusal by the Single Judge. We think it appropriate in his case to grant leave to appeal because there were arguments advanced on his behalf by Mr Seal which merit our consideration.

The facts in relation to him were that, on 9th February, an approach was made to a Miss Gulliford, the next defendant with whom we shall be dealing, by undercover officers seeking drugs. She was associating with the appellant, Bevan. The officers agreed to pay £25 for heroin to be obtained. Miss Gulliford's role was to confirm that the person who made the supply, who was Bevan, would not cheat them. There had been instances of supplies being made to undercover officers of what was ostensibly heroin but was in fact either a quite different drug or some innocuous substance.

Telephone numbers were exchanged between Miss Gulliford and the officers and money was handed over. A little later, Bevan supplied officers with what was believed to be heroin but what was in fact 0.293 grams of paracetamol. In our judgment, if what is supplied is represented to be as a Class A drug and is intended to be purchased as a Class A drug, but is not in fact a Class A drug, that will, generally speaking, make very little, if any, difference to the level of sentence which is appropriate. However, the following day, 10th February, there was further contact between the officers and Miss Gulliford, who took them to Bevan's home, where drugs were cut and distributed. Again, what was in fact supplied was paracetamol, 0.20 grams. The appellant was arrested later. In interview he declined to comment.

The sentencing judge described Bevan as a willing and eager participant and a typical low level dealer and user himself. It was accepted that he had made real efforts to rehabilitate himself. The judge went on to refer to his appalling record and to the fact that, within two days of the activity giving rise to his appearance for the drug misconduct, he had committed the street robbery which led to the 30 month sentence of imprisonment to which earlier we referred.

Bevan, was born in July 1968. He has a bad record, stretching over 20 years. It includes dishonesty and violence of various kinds. He has lost his liberty many times, twice for periods of 3 years. His record, more recently, includes periods of imprisonment shorter than that, for dangerous driving in 2002 and driving whilst disqualified in 2004.

The submission which is made by Mr Seal on Bevan's behalf is based on two principle propositions. First that, in the light of Afonso, the sentence of four-and-a-half years passed in relation to the drugs offences was excessive and, secondly, that that is particularly so, bearing in mind that it is a sentence to be served from the date on which it was passed in August 2004. By that time, as we have indicated, the appellant had spent a significant period in custody, both prior to being sentenced for the robbery offence and for three-and-a-half months thereafter.

Mr Seal accepted that, of the defendants whose cases we are considering today, the record of Bevan is significantly the worst. There was and remains a question as to whether at the time of this drugs offending Bevan was a drug addict. But, even if he was, clearly he is not within the Afonso category because his many convictions include one in 1997 for supplying heroin, in relation to which he received a 12 month sentence to which a 2 year sentence was imposed consecutively for escaping from custody. That gives rise to one of the 3 year terms of imprisonment to which we have earlier referred.

The position, as it seems to us, so far as Bevan is concerned, is whether it can be said, bearing in mind that he is not within the Afonso category, a four-and-a-half year term can be characterised as manifestly excessive. As was made clear in the judgment in Afonso, the considerations highlighted in that case were not intended to affect the level of sentence generally applicable to retail suppliers of Class A drugs, as identified in R v Dhajit [1999] 2 Cr App R(S) 142 and R v Twisse [2001] 2 Cr App R(S) 37. The question, therefore, which arises is whether, by reason of the concurrent impact of the four-and-a-half years imposed by the learned judge, on the serving of the robbery sentence from which the appellant would otherwise now have been released, can be characterised as manifestly excessive or wrong in principle. In our judgment, in all the circumstances of this case, it cannot and therefore Bevan's appeal is dismissed.

We turn to Gulliford, to whom some reference has already been made. She pleaded guilty to four counts of being concerned in the supply of heroin, in relation to which she was sentenced to 3 years and 9 months' imprisonment concurrently, and she also pleaded guilty to a count of possessing cannabis, for which no separate penalty was imposed. She sought an extension of time and leave to appeal against that sentence, both of which we granted.

The facts, as already anticipated in Bevan's case but we repeat them briefly in her case, were that, on 9th February 2004, an undercover officer approached someone in the centre of Pontypridd asking about drug availability. That person contacted Gulliford, with whom the undercover officers reached an agreement to pay £25 for heroin. Miss Gulliford's job was to confirm that Bevan would not cheat them. Later he supplied what purported to be heroin but was paracetamol. The following day she again took officers to Bevan's home, where, again, what passed was not heroin but paracetamol.

On 19th February arrangements were made by the appellant for Bevan to supply drugs to the officers at another woman's flat. They travelled to the flat and were supplied with drugs.

On 23rd February the officers again went to the appellant's flat and from there to another house and the appellant supplied the officers with heroin in exchange of £2 or £3 worth of petrol. She was arrested on 25th March and had a small quantity of cannabis in her possession.

The judge referred to this appellant's long-standing problem with drugs and her minor previous convictions. Her case, he said, was the least serious of those in the dock and in view of her age and vulnerability the sentence on her was somewhat less.

She was born in October 1979. She has a previous conviction for simple possession of drugs and one other conviction. A pre-sentence report upon her indicated that there was some risk of her reoffending unless she addressed her addiction but she did not try to minimise the seriousness of her offending.

The submission which is made on her behalf by Mr Seal is that, in the light of Afonso, the sentence passed upon her was too long. We agree. The sentence of 3 years and 9 months' imprisonment is quashed. Her appeal is allowed to the extent that, in substitution for that term, there will be a term of 2 years' imprisonment concurrently on each of the four counts.

We come to Susan Gething and Tony Forward. Gething pleaded guilty to two counts of being concerned in the supply of heroin and was sentenced to three-and-a-half years on each count concurrently. Forward pleaded guilty to two counts of supplying heroin and was sentenced to four-and-a-half years' imprisonment on each concurrently. Both appeal by leave of the Single Judge.

The facts were that, on 17th February, two undercover officers went to an address where they had been previously supplied with drugs. When the doors were opened the officers went in with the appellant Gulliford. She went next door to the flat which was occupied by these appellants, Gething and Forward, and the officers went too. These two appellants spoke to the officers about drugs, particularly heroin and Forward said he could get 0.25 of an ounce for £25. He made a telephone call and a deal was set up. Gulliford asked for a lift in order to pick it up. Gething suggested the officers could take her and Forward to get the heroin. The officers left with Forward and Gulliford and Forward bought 0.59 grams of heroin for £25, which he gave to the officers. On 23rd February the officers returned. They saw Gething when she arrived. She asked to be taken with Forward by the officers to another address to get some heroin in return for £2 petrol money. The woman that the flat belonged to also asked Gething to obtain heroin for her. Gething confirmed that she would be buying for everyone. It was arranged that the officers would have two bags and the other woman one. Forward subsequently bought a total of 0.103 grams of heroin for the officers.

The basis of Gething's plea was that she had become involved on 17th February by introducing one of the undercover officers to her partner, Forward. She knew that that would be for the purpose of drugs being supplied. She did not receive any payment for her role and did not accompany those who went to obtain the drugs. She believed the undercover officers were established users, who were friends of her friend, Gulliford. She herself, Gething, was addicted to heroin and was never involved with supplying drugs on a commercial basis.

Forward's basis of plea accepted his involvement in supply of heroin to the undercover officers and arranging for supply and directing people to the supplier. He believed at the time that the officers were established heroin users and were acquaintances of his friends. That was why he had become involved. His only renumeration was a small amount of heroin. Those drugs were used to feed his own long established habit. He had never supplied on a commercial basis.

The learned judge, in passing sentence, referred to Gething recruiting her co-accused in order to supply others, but she had no relevant previous convictions. Forward was a low level dealer with a bad record.

Gething was born in March 1971. She has several convictions for shoplifting and one for possessing cannabis. She has never been previously convicted of supplying drugs and has not previously lost her liberty. Forward was born in June 1966. He has a poor record, spanning more than 20 years, for dishonesty, particularly burglary and minor violence. He has lost his liberty many times, for the longest period, in 1996, when he received 2 years and 9 months for burglary. He has, on three occasions, in 1994, 1996 and 2003, appeared for possessing cannabis.

The pre-sentence report on Gething made no recommendation and referred to the high risk of her reoffending unless she addressed her addiction. She expressed deep shame for what she had done. No pre-sentence report could be prepared on Forward because he failed to attend when he should have done for an appointment for that purpose. There are prison reports on both these appellants. That on Gething is good; that on Forward is unimpressive.

The submission which is made by Mr Seal on behalf of both these appellants is that the sentences of three-and-a-half and four-and-a-half years imposed on Gething and Forward respectively are too high in the light of Afonso. We agree. Those sentences are quashed and there are substituted for them in the case of Gething a sentence on each count concurrently of 2 years' imprisonment and in the case of Forward, a sentence of 3 years' imprisonment on each of two counts concurrently. To that extent, their appeals are allowed.

We turn, finally, to Jones. He pleaded guilty to being concerned in the supply of heroin and to supplying heroin in relation to both of which offences he was sentenced to 5 years' imprisonment concurrently. No separate penalty was imposed for possessing cannabis. Further counts of attempting to supply heroin and possessing heroin were ordered to remain on the file on the usual terms. No separate penalty was imposed on him for an offence of theft and breach of a Drug Treatment and Testing Order in relation to which he had been separately committed for sentence. His application for an extension of time in excess of 9 months and for leave to appeal against sentence have been referred to the Full Court by the Registrar.

Co-accused called Stephen Jones and David Jones who have both been sentenced to four-and-a-half years' imprisonment, had their sentences reduced, as we said at the outset of this judgment, to two-and-a-half years' imprisonment.

The circumstances in relation to Dean Jones are these. On the afternoon of 18th February two officers approached him and his co-accused and asked if some drugs could be sorted for them. Stephen Jones agreed a price of £20, took the officers' mobile telephone and made a call on it. Stephen Jones and the applicant then walked down an alley and returned a little later. They beckoned to the officers and David Jones to go down the same alley. Stephen Jones took out two wraps of heroin, which he handed to officers and exchanged for £20 and said "make sure you don't do it all at once because it's strong stuff and you'll overdose." The first wrap contained 0.123 grams of heroin of 67% purity and the second 0.128 of 65% purity. This applicant supplied his telephone number which, for convenience, he logged into the police officer's mobile telephone.

The next count related to events on 25th February when the applicant and an undercover officer spoke on the telephone and agreed to meet so that two £20 bags of heroin could be supplied. They met outside Pontypridd Police Station and, as they walked to a parked car, talked about the quality of the heroin previously supplied. As they reached the car they could see a man apparently unconscious in the rear seat. The applicant remarked "that's how good my gear is, look at him". Inside the car, the applicant supplied the officer with two wraps containing 63 and 69 milligrams each with a purity of 69%.

The applicant was arrested in his flat on 23rd March, where a small amount of cannabis was found which gave rise to the offence for which no separate penalty was imposed.

In interview the applicant made full and frank admissions about his offences.

The learned judge, in passing sentence, referred to this applicant's bad record and to the fact that he was subject to a Drug Treatment and Testing Order for supplying drugs.

The applicant was born in November 1980. He has 26 conviction for 39 offences in total. Of particular materiality is conviction 23, in February 2003, when the Drug Treatment and testing order to which we have referred was made, in relation to three offences of supplying heroin. A pre-sentence report indicated that this applicant was not under the influence of drugs at the time he committed the offences. He needed to develop his cognitive skills and address his drugs use. There was a high risk of re-offending.

So far as the extension of time is concerned, the Court granted that in the course of Mr Donoghue's submissions on behalf of Dean Jones.

Mr Donoghue accepted that this applicant is not within the category identified by Afonso. That, as it seems to us, is apparent for two reasons. First, because he has a previous conviction for supplying Class A drugs, and secondly, because of his conduct, in putting his mobile telephone number into the mobile telephone of one of the police officers.

Mr Donoghue submitted that, in the light of the reductions in sentence accorded to the two other defendants called Jones, the sentence of 5 years in relation to this Jones is one which should be properly characterised as manifestly excessive. We do not agree. In our judgment, that proposition is not arguable in the light of the appropriate tariff, as indicated in Afonso, save for those who are within the very limited category identified in Afonso. Jones is not in that category. No legitimate complaint can be made about his sentence of 5 years. Therefore his application for leave to appeal against sentence is refused.

We make one final comment because, in the course of submissions to this Court, reference has very properly been made to a judgment given by Sir Ian Kennedy sitting with Pill LJ on 29th November 2004 in Doggett & Owens [2004] EWCA Crim 3527. The appellant in that case, Owens, may, in our judgment, have been fortunate in the extent to which his sentence was reduced by the Court of Appeal. He had a previous conviction for supplying drugs on three occasions, albeit Class B drugs. Whether he was fortunate or not, there is nothing in the judgment of the two judge Court in Doggett & Owens which impinges either on those whose applications or appeals are before us today who have previous convictions for supplying Class A drugs or on what we have said about the relevance of previous convictions whether or not they are for drug offences.

THE VICE PRESIDENT: I hope it is clear from what we have said that everybody to whom we have granted leave gets a representation order for counsel. I think Mr Donoghue, in relation Jones, you already have a representation order, do you not?

MR DONOGHUE: Yes, thank you.