Attorney General's Reference No. 12 OF 2006

LORD JUSTICE KEENE: This is an application, under section 36 of the Criminal Justice Act 1988, by Her Majesty's Attorney-General for leave to refer a sentence to this Court because it appears to him to be unduly lenient. We grant leave and therefore treat this as the hearing of the Reference.

The offender, Rupert Hardy Sinclair, was convicted on 1st December 2005 at Wood Green Crown Court, after a trial, of one count of possession of a Class C drug, namely cannabis, with intent to supply, and one count of having an article with a blade, namely a 3 inch knife, in a public place. On 5th January 2006 he was sentenced by Her Honour Judge Bevington to a community punishment order. He was ordered to perform 200 hours work for the drugs offence and a concurrent period of 50 hours work for the possession of the knife. That made therefore a total period of 200 hours work which he was required to do.

The charges arose out of events on 2nd April 2005. On that day police officers stopped a car being driven by the offender in East London. In the boot of the vehicle the police found a large bag containing 10 compressed blocks of skunk cannabis. Each block had been heat sealed in clear plastic. In total the cannabis weighed 4.94 kilograms. The offender was arrested, but as the police attempted to apply handcuffs he ran off. Eventually he was detained and taken to Edmonton police station. There he was found to be wearing a belt into the buckle of which was incorporated a 3 inch knife. The offender said: "I forgot about that, it's just a belt, I wear it every day."

In interview he said that he had collected the bag containing the cannabis in Redbridge. He said that he had not looked inside the bag but believed it to contain records.

The pre-sentence report recommended a community punishment order. However, the writer of it had proceeded on the false basis that the offender had no previous convictions because that was the upshot of the antecedents originally produced by the prosecution. The offender pointed out, in a very frank manner, that he did in fact have a previous conviction. Despite that, an accurate record of his antecedents was not made available until the day of the sentencing hearing itself.

During the course of that hearing the judge expressed the view that it would be unfair to the offender, having raised his hopes by the recommendation in the report, for that recommendation not to be followed. She noted that the previous convictions were old and unrelated to drugs and, as a result, she passed the non-custodial sentence to which we have referred.

It is now submitted, on behalf of the Attorney-General, that in circumstances such as these an immediate custodial sentence was called for and that a non-custodial outcome was wrong in principle. Mr Laidlaw, who appears on behalf of the Attorney-General, refers to a number of authorities. Some of these establish that, even though cannabis has been re- classified as a Class C drug, the previous guidelines which existed when it was a Class B drug still apply (see the case of R v Mitchell [2004] EWCA Crim 2945 and R v Donovan [2004] EWCA Crim 1237. This reflects the fact that Parliament, while re-classifying cannabis, increased the maximum sentence for offences involving a supply of it to 14 years' imprisonment, the same maximum as for offences involving the supply of Class B drugs. There is no dispute between the parties in this case that those earlier guidelines apply. We accept that that is indeed the position.

While the Attorney General accepts that the offender has no relevant previous convictions, it is submitted on the Attorney's behalf that this offender was in possession of a significant quantity of cannabis, nearly 5 kilos, with intent to supply. The circumstances surrounding the pre-sentence report did not, it is said, justify a non-custodial sentence.

The submission is made by Mr Laidlaw that the non-custodial sentence here failed properly to reflect the seriousness of the offence, the aggravating features present, the need to deter others and the public concern about offences such as this.

As we have indicated, his case is that a non-custodial sentence was wrong in principle. It is suggested on the basis of other authorities that the appropriate sentence here, at first instance, would have been one of 18 months' imprisonment. That is particularly based on the cases, apart from the well-known one of R v Aramah (1982) 4 Cr App R(S) 407, of R v Theophil [2003] EWCA Crim 1288 and R v Lappalainen [2005] EWCA Crim 1458.

It is acknowledged that, in this Court, an allowance has to be made for double jeopardy and for the extent to which the offender has actually carried out the unpaid work since the sentence was passed. He has, it is agreed, done 78 hours of the 200 hours unpaid work which he was required to do. But, taking all those matters into account, it is said on behalf of the Attorney-General that an appropriate sentence, for this Court now to pass, would be one of 9 months imprisonment.

This offender is aged 47. He has no previous convictions for drug offences, although he does have a number of convictions for offences of burglary, theft and handling. On the other hand, as we have already indicated, those offences are of some age, the most recent of them being in 1994. So there was a substantial period when he has kept out of trouble. He is married and has two adult children. He is self-employed.

In our judgment, the starting point today has to be the line of cases which began with R v Aramah, which indicate a bracket normally of a custodial sentence of between 1 and 4 years' imprisonment in cases such as this. In that decision Lord Lane, C.J., said that at the lower end of the scale will be the retailer of a small amount to a consumer. One cannot regard this as being such a case. The possession of almost 5 kilos of cannabis with intent to supply makes it a case above the bottom level of the bracket indicated.

Having said that, we accept the proposition advanced on behalf of the Attorney-General that at first instance a term of imprisonment of some 18 months was appropriate here. The mitigating features have to be considered, of course. They do not include a plea of guilty because this matter was contested. The eventual total sentence had to reflect the possession of the knife. The sentencing judge placed great weight on the family circumstances of the offender, including the support of his wife, who wrote a very persuasive letter about the impact which imprisonment of the offender would have on her and the family. The judge was also influenced by the fact that the offender had "had his hopes raised" by the favourable pre-sentence report prepared on an erroneous basis.

We have to say that we do not regard that last aspect of the case as of any real significance. A pre-sentence report will not uncommonly recommend a community sentence and thus raise the hopes of an offender. It is not then unfair for the judge to take a different view and to conclude that, despite that recommendation, a custodial sentence is appropriate. We can see that there might be some unfairness if the absence of previous convictions made a non-custodial sentence the right outcome, that is to say, if that made all the difference. But that is not the case here.

It seems to this Court that an immediate custodial sentence was required in this case at first instance and that the community penalty imposed was lenient and unduly so. As already indicated, we agree with the Attorney General that a term of 18 months' imprisonment would have been appropriate at first instance. However, we have to deal with the matter today. We must allow for the fact that Mr Sinclair has already been sentenced once and was allowed to remain in the community to serve his sentence. A custodial sentence now bears particularly heavily in such circumstances. We have to make an appropriate allowance for this factor, normally described as double jeopardy. That, in our view, would alone reduce the appropriate term here to one of around 9 months' imprisonment. In addition to that, we have to allow for the hours which the offender has worked under the community punishment order. It is a very significant proportion of the total, close to 40%.

When we take that into account as well, it seems to this Court that one would be left with a short period of custody and we then have to apply our discretion as to whether that is truly merited, in the present case. In our judgment, custody is not now merited given the circumstances to which we have referred. As a matter of discretion, in all the circumstances, we decline to interfere with the sentences which were passed below.