Drugs offences - Offender charged with possessing Class A drug with intent to supply

Attorney General's Reference (No 17 of 2011); R v Mandale: Court of Appeal, Criminal Division (Lord Justice Pitchford, Mr Justice Treacy and the Recorder of Birmingham): 12 May 2011

The offender, aged 43, was stopped while driving a motor car northbound on the M6 motorway. He was accompanied by a female passenger, a young woman with whom he had been in a relationship for several years, but from whom he had been separated. Inside the driver's door pocket of the vehicle was a plastic bag containing heroin in two clear plastic wraps, weighing respectively 27.4 grams of 100% purity and 53.28 grams. The estimated street value of the drug was just over £8,000. The offender, who had no recent convictions, was arrested. He made no comment in interview.

The offender was charged with possessing a Class A drug with intent to supply. The offender, himself a drug-user, pleaded guilty to the charge. He admitted that he was a courier for the drugs, delivering them to Penrith from London and that he was to be rewarded with five grams of heroin, worth an estimated £500. He had acquired a dependency upon heroin following the collapse of his food business in Spain, the breakdown of his relationship and an accident causing him painful symptoms, which required - while he was on remand - reconstructive surgery to his Achilles tendon. Sentencing was adjourned.

By the sentencing hearing, the offender had weaned off drugs. He was assessed by the author of a pre‑sentence report as a low risk for re‑offending and his parents had offered him a job in one of their two local businesses. The offender was sentenced effectively as a man of good character to 12 months' imprisonment, suspended for 24 months, with a 12‑month supervision period and a requirement that he undertake 240 hours of unpaid work. It was agreed that the offender should receive full credit for his plea of guilty.

In sentencing him, the judge had taken account of the mitigating factors and had stated that: 'I am dealing with you as a person effectively with no previous convictions... my starting point would be a period of three years' imprisonment. I would reduce that by one-third because you pleaded guilty at the first opportunity. That takes it to two years' imprisonment. If I were to impose that upon you today you would only serve 75 days, a period of ten weeks. That is because you have a total of 145 days to count towards the service of the sentence. I am satisfied that in all it would be far better for the community for you to remain in the community now that you have overcome your drug addiction and to become a useful member of that community.

'So what I intend to do with you is impose the most serious suspended sentence that I can and I will make it clear to you that if you breach that order you will come back to court and you will go to prison.' The attorney general sought leave, pursuant to section 36 of the Criminal Justice Act 1988, to refer the sentence to the Court of Appeal, Criminal Division, as unduly lenient. Leave was granted.

The attorney general submitted the sentence was unduly lenient. The appropriate starting point for an offence such as the instant offence was seven to seven and a half years because those who were involved in conveying drugs were more seriously involved in the activity of distribution of drugs than the dealers themselves on the street. An issue arose as to the weight attributable to mitigating factors when sentencing in respect of Class A drug offences.

The court ruled: (1) The Court of Appeal did not accept the submission that those who were involved in conveying drugs were more seriously involved in the activity of distribution of drugs than are the dealers themselves on the street. The culpability of the individual would depend upon all the circumstances (see [14] of the judgment). R v Aramah 4 Cr App Rep (S) 407 considered; R v Singh 10 Cr App Rep (S) 402 considered; R v Williams [2010] EWCA Crim 1726 considered; R v Allan [2010] EWCA Crim 726 considered.

(2) Those who were involved in the supply of Class A drugs would derive limited mitigation from their personal circumstances. The reason for that approach was the terrible damage which their activities occasion to others. It was important that those who leant themselves to the distribution of Class A drugs entertained no doubt that upon conviction they would be going to prison, and that the public had confidence that that was the case. The court had to consider all aspects of the offending in the assessment of the seriousness of the offence.

Three factors to be considered in particular were: (i) the quantity and purity of the drug being dealt, stored or conveyed; (ii) the position occupied by the offender in the hierarchy of distribution between importation at one end and supply on the street at the other; and (iii) the duration of involvement and the persistence with which the offender committed drugs offences. Carrying, warehousing and minding Class A drugs with intent to supply, remained, save in the most exceptional circumstances, an offence for which an immediate sentence of custody would be appropriate. The starting point will usually be in the range of five to seven years, depending upon factors (i) and (iii) identified above. With quantities around or above one kilogram of Class A drug at 100% purity, the starting point was likely to be higher (see [12], [14], [16], [21] of the judgment).

In the instant case, the sentence was unduly lenient. The offence had involved a planned journey with about 27 grams of heroin at 100% purity. The offender was not a low level dealer simply feeding his own addiction. He was close to a distributor or wholesaler, who trusted him to make the journey between London and Penrith, with product whose street value ran into several thousands of pounds. The starting point selected by the judge, taking into account the mitigating factors, was only just within the appropriate range, which would have been three to four years.

It had been agreed that the offender should receive full credit for his plea of guilty, the effect of which was to produce a sentence of two years' imprisonment. In all the circumstances, it was clearly appropriate to return the offender to custody. There was an important public interest in ensuring consistency of sentencing, particularly in a field as sensitive as Class A drug distribution. In all the circumstances, a sentence of two years' imprisonment, to be imposed immediately, was the least sentence which should have been considered.

It had no alternative but to reinforce the public interest in imposing immediate sentences of custody upon those who commit such offences as the offender had (see [12], [23], [25]). The suspended sentence would be quashed and substituted by a sentence of two years' imprisonment.

Alison Whalley (instructed by Michael J Fisher) for the offender; Esther Schutzer‑Weissmann (instructed by the Treasury Solicitors) for the attorney general.