Attorney General's Reference Nos 74 & 75 of 2004

THE VICE PRESIDENT: Attorney-General seeks the leave of the Court, under the Criminal Justice Act 1988, to refer a sentence said to be unduly lenient. We grant leave.

The offender, Scott, is 27, having been born in January 1978, and the offender, Holmes, is 25, having been born in March 1979. On 14th April 2004, their case having been listed for trial at Teesside Crown Court, on an indictment charging conspiracy, the indictment was amended on that day by the addition, in relation to Scott, of count 5 and, in relation to Holmes, of count 3, being counts which alleged being concerned in the supply of a controlled Class A drug, namely cocaine. The two offenders on that date pleaded guilty to those substantive offences and sentence was adjourned for reports.

On 7th May 2004, His Honour Judge Spittal sentenced Scott to three-and-half years' imprisonment, and Holmes to 3 years. Another man called Wascoe, who pleaded guilty to conspiracy, was sentenced to 8 years.

The Cleveland police had mounted an undercover operation to identify drug dealers. Between May 2002 and May 2003 Holmes, at the request of undercover officers, supplied cocaine to them on 13 occasions and received payment totalling £7,600. Holmes also introduced his supplier to one of the undercover police officers with a view to increasing the amount of cocaine to be supplied. Holmes' reward was to take some of the cocaine for his own personal use.

Between May and July 2003, the offender, Scott, supplied substantial quantities of cocaine, on eight occasions, to undercover officers and he received payments totalling £30,000. The offenders were both, in their different ways, acting as runners between suppliers and the police officers.

The undercover operation, in a little more detail, was focussed in particular on a public house in Bishopsgarth Stockton-on-Tees where cocaine and other drugs were supplied at the premises, and in some cases, consumed. In May 2002 one of the undercover officers called 'Gary' started to socialise with the offender, Holmes, at that public house. Over the course of a few days, cocaine was mentioned, and Holmes volunteered that he knew a dealer called Pearce who had the best cocaine available. He asked to borrow Gary's mobile telephone in order to order cocaine and Gary said that he was interested in buying. When they next met Holmes told Gary that he would approach Pearce, who was present on the premises and asked if he had any cocaine to sell. On that occasion Holmes obtained a small amount which he sold to Gary for £50. Following that supply, as we have said, there were, over a period of 12 months, a further 13 supplies; that is to say Holmes in total supplied, on 14 occasions, just under 180 grams of cocaine, for which, as we have said, he was paid £7,600. Initially, those supplies were in quite small amounts, but from March 2003 the amounts increased to 12 or 13 grams and, ultimately, to over 80 grams.

Holmes indicated to those who were supplying that he was now using a different supplier, to whom he referred as 'Daz', that is the man Wascoe to whom we have referred. Gary introduced another undercover police officer, known as 'Steve' to Wascoe and the purpose of that introduction was to enable an increased order for cocaine to be placed each week. On 8th May 2003 Steve was supplied directly by Wascoe with over 80 grams of cocaine and, as we have said, on 13th May, Holmes helped Wascoe to supply over 80 grams of cocaine. The supplies with which Holmes himself, alone, was concerned have sufficiently been summarised.

At a meeting on 7th May 2003 Steve and Wascoe decided that it would be beneficial for their respective runners to be introduced to each other. On 8th May the offender, Scott, appeared as Wascoe's runner. He was driving a motor car. A further meeting was arranged that day, at which Steve was supplied by Wascoe with the over 80 grams of cocaine to which we have referred. It had been kept in the glove box of the car driven by Scott and the supply was made in his presence.

On 13h May Steve spoke directly to Scott on the telephone in order to set up a further supply which was made later that day to Steve, by Holmes. That was the occasion to which we have earlier referred, when Holmes supplied over 80 grams for some £3,000. There were a further eight occasions when Scott directly supplied cocaine to Steve, or Gary. Its purity ranged between 36% and 53%. Scott spoke on the telephone to the undercover police officers and they made arrangements for delivery and payment, the delivery being made at a variety of locations at which Scott normally arrived on a motor bike. His eight supplies, which totalled some 840 grams between late May and late July 2003, resulted in payment to him of £30,000.

There was a good deal of telephone evidence which revealed that Scott himself did not make any calls on his telephone to parties relevant to these proceedings, but between 1st May and 24th July, Scott received 81 calls of which 46 were from Wascoe, 10 from Holmes and 25 from undercover police officers.

Both offenders were arrested on 4th September 2003, and made no reply when they were interviewed. Holmes tendered a written basis of plea, accepted by the prosecution, which asserted that he was a recreational user of cocaine and cannabis and that, at the request of undercover police officers, he had supplied cocaine on approximately 14 occasions, passing drugs one way and money the other. He did not supply anyone else with drugs and he only acquired the quantities for which the officers asked. He skimmed off cocaine for his own personal use, and later, when he introduced the officers to Wascoe, he was supplied cocaine for the introduction.

Scott has a number of previous convictions for offences of dishonesty and violence and, in November 1996, for possession of a firearm, his sentence of 3 years in relation to which was reduced on appeal to 2 years' detention in a young offender institution. In December 2002, he was convicted of possessing cocaine for which he was fined £75. The offender, Holmes, has no previous convictions.

On behalf of the Attorney-General, Mr Heywood draws attention to what he submits are a number of aggravating features. First, the supplies of cocaine were repeated and continued over a 2 month period in relation to Scott and a 12 month period in relation to Holmes. Secondly, the supply was on a large and escalating scale in relation to both offenders. Third, the role of each offender, although different, was vital to the distribution of cocaine, and fourthly, so far as Scott is concerned, he has the previous conviction for possession of cocaine to which we have referred.

Mr Heywood draws attention to the mitigation to be found in the pleas of guilty albeit, as is conceded on behalf of Scott, at a late stage, and in relation to Holmes, although he did not plead until a late stage, it is common ground that an indication had been given at a much earlier stage that a plea of guilty to a substantive count or counts would be forthcoming, when the indictment was amended as, in due course, it was. So far as Holmes is concerned, there is of course further mitigation in the fact that he was of previous good character.

Mr Heywood draws attention to a few authorities, to some of which it is necessary to identify: R v Dhajit [1999] 2 Cr App R(S) 142, R v Twisse [2001] 2 Cr App R(S) 37 and R v Williams & Ors [2000] 2 Cr App R(S) 308. Reference has also been made, both by Mr Heywood and by Mr West, on behalf of Holmes, to R v Afonso [2004] EWCA Crim 2342.

The submission made on behalf of the Attorney is that the sentences of three-and-a-half and 3 years respectively, on Scott and Holmes, fail properly to reflect the gravity of these offences, the aggravating features present, the need for deterrence and public concern about the supply of cocaine and the social consequences which follow.

On behalf of Holmes, Mr West laid considerable emphasis, at some length, on the differences which he identified between the position of Holmes and the position of Scott. In essence, the submission amounted to the proposition that, whereas Scott was supplying from within the organisation for drug distribution, Holmes was supplying from without that organisation. As it seems to us, of much more materiality, in relation to the roles played by runners, is the amount of drug which is supplied and the period over which it is supplied, although the proximity of a runner to the major source of supply is, of course, a factor to be taken into consideration.

Mr West submits that the sentence passed on Holmes was not unduly lenient, having regard to his good character, the fact that he was, apart from his activities in relation to drugs, a hard worker. He is, Mr West submitted, a naive and immature young man, fertile to be used by others. Although written submissions made prior to today by Mr West made reference to Afonso, he conceded, during the course of his submissions, that this is not an Afonso case. That concession, as it seems to us, was inevitable, bearing in mind that, as appears from paragraph 3 of the judgment in Afonso, that case was concerned with "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." As it seem to us, the only significant similarity between Holmes' case and the authority of Afonso is that Holmes did not hold any stock of drugs.

Mr West drew attention to what, as it seems to us, is a highly material matter in relation to Holmes, namely that he was released, it appears under the tagging provisions, from the sentence which he is presently serving on 9th October; that is to say, he has been at liberty for a period of 4 months. We are told by Mr West that he has recently obtained some sort of employment which is open to him as from next week.

On behalf of Scott, Mr Mitchell accepts that the scale of dealing by Scott indicates a substantial involvement in drug supply by him. On the other hand, Mr Mitchell stresses that there is no evidence of any high living by Scott, and he really became embroiled in this because he worked for Wascoe in his garage, in particular, being employed as a parts delivery man. Mr Mitchell ventured the suggestion that his activity in relation to the supply of drugs was no more than a modest extension of his legitimate employment. Mr Mitchell accepted that Scott was not entitled to a maximum credit for his plea of guilty, having regard to the late stage, namely the day of trial, at which it was tendered.

All of these matters we take into account. So far as Scott is concerned, we have no doubt that the sentence which was passed upon him was an unduly lenient one. We would have expected, in the circumstances of his late plea, which we have rehearsed, a sentence of the order of 6 years or possibly a little more in the court below. Taking into account double jeopardy, the sentence which in his case we impose, in place of the three-and-a-half year sentence imposed by the learned Crown Court judge, is one of 5 years' imprisonment.

So far as Holmes is concerned, the sentence which was passed upon him was, in our judgment, plainly lenient, and it may well have been unduly lenient. That said, when these are taken into account double jeopardy and the important factor to which we have referred, that he has already been released for some months from his sentence of imprisonment, even if the sentence was unduly lenient, it is not one with which, in the exercise of its discretion, this Court should interfere, and therefore we do not.