Attorney General Refrence No 101 of 2009

THE VICE PRESIDENT: Her Majesty's Solicitor General seeks leave to refer under section 36 of the Criminal Justice Act 1988 a sentence imposed following late pleas of guilty to two offences of possession of drugs with intent to supply. The sentences were, in total, 12 months' imprisonment suspended for two years, coupled with a supervision requirement and a drug rehabilitation requirement in each case of 12 months' duration. We give leave.

The defendant is 27. He has been convicted previously since the age of 18 on fifteen different occasions. One of those was for possession of cocaine and cannabis with intent to supply and another was for producing cannabis. The latter of those convictions had resulted in the only previous custodial sentence, which was a total of eight months for that offence and also for driving whilst disqualified; that had been in September 2007.

On a Monday evening in November 2008 he was found with three others standing in an alcove or shop doorway in Penwortham. On him, hidden in one case in his sock and in the other in his closed hand, were two roughly one gram deals of cocaine in plastic bags. At home the police found a further 28 grams or thereabouts of cocaine, together with about ten grams of skunk cannabis divided into four separate plastic bags. There were also three small pieces of cannabis resin. Amongst his possessions at home were lists which appeared to be lists of supplies and a set of scales. The defendant had two mobile phones. When they were interrogated they revealed numerous text messages to him which are clearly requests for supplies of individual deals of either cocaine or cannabis. On some occasions there were several such requests in a day or indeed in the same evening. In the case of cannabis they are requests for up to half an ounce at a time. One of them reads: "Get in touch; got orders; need green".

The defendant told the police that all the drugs that had been found were for his own personal use. He said he bought in bulk to achieve a lower price. The bags, he said, were simply means of convenient storage for what he was going to use himself rather than indications of potential supply. However, at the end of his interview he made what appeared to be tantamount to an assertion that although he was not a dealer he was a collector of money for others. That is not consistent with the telephone messages. That stance, advanced in interview, whatever exactly it was, was maintained until the morning of his trial for possession with intent to supply. At that point, however, belatedly, he pleaded guilty.

He advanced a written basis of plea which it is important to observe was not challenged by the Crown. It read as follows:

The mitigation advanced on his behalf with no little ability by Mr Boyd was twofold. First it was that this was only social dealing designed to feed an addiction and accordingly should be treated differently from other forms of street dealing. Secondly, it was contended that the defendant was at a turning point in his life. He had a new opportunity opening before him to put his addiction to drugs behind him and the Recorder was invited to take advantage of that opportunity by passing a constructive sentence aimed at his rehabilitation. The combination of those submissions persuaded the Recorder to pass the sentence that he did. The Recorder was well aware that what he was doing was a departure from what might be expected in the ordinary run of supplying cases.

As to those two propositions, both of which have been repeated to us today, we ought to say this. The first proposition is on the facts of this case founded on a false basis. We accept that it may be yet more serious if a defendant is in drug dealing only for the money and made no personal use of drugs itself so that his peddling of them was entirely cynical. That said, a very large number of those involved in drug supply at street level are themselves habitual users.

The proposition appears to have been advanced to the Recorder that this was a case within the decision of this court in R v Afonso [2005] 1 Cr.App.R (S) 99 at 560, [2004] EWCA Crim. 2342. This is a case, in our experience, which is frequently misused, misunderstood and misquoted in submissions in the Crown Court and that may have been the position here.

The relevant part of Afonso begins by endorsing the general level of sentence for small-scale street dealers of class A drugs as established by cases such as Djahit [1999] 2 Cr.App.R (S) 142 and Twisse [2001] 2 Cr.App.R (S) 9 at 37. The court, in the judgment of Rose LJ, explicitly said:

This was not on any arguable basis an Afonso case. It is not clear whether the defendant was out of work, but all the indications were that he was perfectly capable of work and of acquiring an honest income. He had an addiction, or at least an habitual use, but he did hold stock and his sales were not by way of test purchases; they did foster the general circulation of class A drugs with all the potential consequences for crime that that circulation sadly but inevitably brings. We have not the slightest doubt that absent some unusual consideration this was after trial a five or six year case and after a late plea it was four-and-a-half to five-and-a-half years.

We wish to make it clear that it makes little difference that a street dealer operating on a commercial basis, as this man undoubtedly was, uses the profit that he makes to buy drugs for his own use rather than for some other form of consumption. As we have said, very large numbers of those engaged in street dealing are themselves users of drugs. That is often how they get involved in it.

This case depends not on the level of ordinary sentence for street dealers but on the second proposition advanced to the learned Recorder. We want to say absolutely nothing which is capable of discouraging sentencing judges in the Crown Court from passing in a suitable case sentences of either drug treatment and testing orders (where still available) or community orders or sometimes (as here) suspended sentences with a drug rehabilitation requirement. Such orders are capable of being constructive, of capitalising on motivation to change and thus they are capable of being very much in the public interest. If a drug addict who is also in consequence a criminal can indeed be helped to put his use and abuse of drugs behind him, with the prospect that with that will pass habitual criminal offending, that is in everybody's interest.

There are two principal conditions in which such a course can properly be taken and they were helpfully set out, again by Rose LJ, in Attorney General's Reference No 64 of 2003(Boujettif and Harrison), [2003] EWCA Crim. 3514. In summary, first the offence must be of a kind where it will not undermine public confidence in the criminal justice system if a non-custodial sentence is passed. Secondly, and more relevantly for the present case, there must be a proper basis justifying a real reason to believe the defendant wants to rid himself of drugs. Without that there is no prospect of success. Courts need to be aware that many defendants, and perhaps particularly drug abusers, find it easy to make promises when they are otherwise confronted with the prospect of a long sentence of imprisonment. Simple optimism is not enough.

Sentencers contemplating a drug rehabilitation requirement should be alive to the differing powers available to the court in the event of breach. If the order is a community order the court can re-sentence ab initio: Criminal Justice Act 2003, Schedule 8 paragraph 10. If the order is a suspended sentence it can activate that sentence but neither increase it nor sentence ab initio: Schedule 12 paragraph 8. If the present offence would call for a substantial sentence but for the decision to make a drug rehabilitation requirement, the more flexible option is likely to be a community order rather than a suspended sentence which cannot be longer than 51 weeks.

In the present case the offence was not one which although it normally carries a substantial sentence of imprisonment was outside those for which a rehabilitation requirement was put out of court by the impact that it would have on the public. In a proper case of this kind such an order could be made.

If the judge in an appropriate case is persuaded on proper material that such an order should be made he is always to an extent taking a risk. He is certainly passing a sentence which in a sense is a lenient one, although the demands of a drug treatment and testing order or drug rehabilitation requirement are not to be underestimated; they are not easy to comply with. But such a sentence, if properly founded on material before the judge, is certainly not unduly lenient and it will not be appropriate for reference by the Attorney General. As it seems to us, the really difficult question in this case is whether the judge did have the material on which to pass the sentence that he did.

The pre-sentence report disclosed, first, that most of the defendant's associates were drug users and he did not see supplying them as particularly serious. Secondly, it disclosed that drug use was "normalised within his circle" and that he was not proposing any significant change in his circle of friends. Thirdly, it reported that he professed a hope to either reduce or eliminate his use of cocaine but in the assessment of the probation officer it was not at all clear that he really wanted to. So far as the use of cannabis was concerned it recorded that he could see no problem with that. It was also apparent that during his criminal history before the courts there had been a number of non-custodial sentences passed, none of which had had the desired effect and in at least one case the offence of producing cannabis had been committed whilst he was subject to a suspended sentence. Those might have been thought by many to be powerful contra-indications to a sentence of the kind that the judge was persuaded to pass, however superficially attractive the drug addict's promises to reform might have appeared to be.

However, there was also some other material. The defendant had for some months by then been in a new relationship with a woman who was thoroughly respectable, with a highly responsible professional job. She was, we understand, in court but in any event she had written a letter which clearly had a considerable impact on the Recorder. She wrote that the defendant was completely different from when she had first met him: calmer, headstrong and ambitious, he had always displayed a high degree of integrity and responsibility towards her and his work had improved his confidence a great deal. She and he intended to settle down and continue their lives together. She added: "I do believe that people can change" and she indicated that in her judgment that was happening to this defendant and she was there to help him.

In addition, the defendant is not a man, as so many defendants are, without education. He has the qualifications to work in the field of health and safety in the work place. Also in court and also the author of a letter to the judge, was the managing director of a local firm who was impressed by the defendant as fully committed to the professional aspects of his work, found him reliable, punctual, an excellent communicator and eager to expand and build on what was already a substantial knowledge of the area of work. That firm was in a position to offer, and the managing director confirmed that he did offer the defendant, a permanent albeit part-time position within the company.

It is plain to us that it was those two pieces of information from highly reputable sources which persuaded the judge to take the course that he did. It has sadly to be said that it turns out that the risk was not justified. Up-to-date reports indicate that the relationship with the promising girlfriend has broken down, the defendant has as yet failed to test negative for cocaine and whilst he has been attending for most of the time the many appointments that are necessary, the point has now been reached at which he appears to be in breach and he will be brought back before the court very shortly.

But the task of this court is not to second-guess the judge with hindsight. The task of this court is to ask whether at the time the judge was persuaded to pass the sentence he did he was wrong in principle to do so. We are a very long way from saying that any of us would have done it ourselves, but there was material there on which the judge could make this decision and it is of the first importance that judges must accept the responsibility and be trusted to accept the responsibility for making difficult judgment calls. That is what the judge did in this case. It was not wrong in principle. We have already adverted to possible errors of principle not by the judge but elsewhere in the earlier part of the case, but this judge was clearly aware that if he had not taken the course that he did a sentence of a substantial number of years would otherwise have followed.

For all those reasons, which we have endeavoured to explain in a little detail, we give leave to the Solicitor General but in this case do not alter the sentence which was passed in the court below. What happens to the defendant hereafter must be for the courts with up-to-date information and is not for us.