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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Whittle, R v [2007] EWCA Crim 539 (09 March 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/539.html Cite as: [2007] EWCA Crim 539

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IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BOLTON CROWN COURT
Mr Recorder Lamb
200606160A1*2

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/03/2007

Stanley Burnton J :

1. On 31 August 2006 at the Crown Court at Bolton (Mr Recorder Lamb) the appellant was convicted of two counts of possessing a Class A drug (Heroin) with intent to supply. On 7 November 2005 he was sentenced to 5 years' imprisonment on each count concurrent. In addition, a travel restriction order for 2 years was imposed purportedly pursuant to s.33 Criminal Justice and Police Act 2001; and an order was made for the forfeiture/disposal/destruction of drugs under s. 27 Misuse of Drugs Act 1971.
2. He sought leave to appeal against his custodial sentence on the ground that it was manifestly excessive in that it failed to take into account the Sentencing Guidelines Council's guidance on the approach to custodial sentences imposed under the Criminal Justice Act 2003, which, so it is submitted, recommended a reduction of 15 per cent in the length of sentences that would previously have been imposed. He sought leave to appeal against the travel restriction order on the ground that there was no jurisdiction to impose it.
3. The Registrar referred his application for leave to appeal against sentence direct to the Full Court. The Registrar pointed out that the appellant was born on 24 September 1985, and was therefore aged 20 when he was convicted. Accordingly, he should have been sentenced to detention in a young offender institution rather than imprisonment (see R v Danga (1992) 13 Cr App R (S) 408. We gave leave when the application was listed before us on 16 February 2007.
4. The relevant facts of the offences are as follows. At 2.50pm on 27 April 2005, police officers in a marked police vehicle had cause to stop a car which the appellant's co-accused O'Gara was driving and in which the applicant was the front seat passenger. It was established the applicant was wanted for other matters and he was placed in the police vehicle whilst one of the officers started to search their car. O'Gara was told to wait beside the car but ran off and made good his escape. The officer continued to search the car and recovered a plastic "Dash Board Wipes" container. Upon closer inspection, the container was found to contain two plastic packages, one containing 39 smaller packages of heroin weighing 11.2 grams at 40% purity and the other 58 smaller packages of cocaine weighing 18.4 grams at 38% purity. The street value of the drugs was around £3,000.
5. When interviewed, the applicant denied any knowledge of the drugs.
6. Passing sentence, the learned recorder said that the applicant had been involved in a joint enterprise in the moderate distribution of Class A drugs. He and his co-accused had the equipment to travel in order to distribute the drugs and it was obvious some dealing had taken place because £81 was found on the applicant. The offending was not in the lowest bracket of one addict supplying to another. The judge said:

… I have reviewed the decisions in Djahit [1999] 2 Cr App R (S) 142 and Singh (1988) 10 Cr App R (S) 402 and it is clear from those that the starting point for sentence in a case such as this lies in the range of between 5 and 7 years. I have in mind that you were both young at the time of these events – Whittle you were 19 and, so far as you are concerned, O'Gara, you were 18 at the time of your involvement – and in those circumstances, I am able to take the lowest of those starting points as the appropriate point for sentencing.

7. O'Gara, who had pleaded guilty to 2 counts of possessing a Class A drug, namely heroin, with intent to supply, was sentenced on the basis of his plea, namely that he had been recruited by others to sell the drugs for them at a time when he was financially destitute, that he had been provided with a vehicle in order to sell the drugs and that he was being paid £200 a week. He received a sentence of 3 years' detention in a young offender institution.
8. Sentencing the appellant, the judge said that did not have the credit of a plea; the mitigating factor in his case was his age, but he had played a greater role than O'Gara because the tub in which the drugs were found had been purchased by him and he was holding the money. The judge imposed the sentence of 5 years imprisonment referred to above, i.e., the lowest of the starting points to which he had referred, and in addition made the travel restriction order.
9. The power to make a travel restriction order under section 33 of the Criminal Justice and Police Act 2001 is restricted to persons found guilty of a drug trafficking offence as defined in section 34. Perhaps surprisingly, possession of a Class A drug with intent to supply is not an offence specified in section 34. No order has been made by the Secretary of State under section 34(1)(c) designating possession with intent to supply as a drug trafficking offence for the purposes of section 33. It follows that there was no power to make the travel restriction order in this case. It will be quashed.
10. Turning to the custodial sentence, Mr Robinson's only submission is that in taking the sentencing range of 5 to 7 years from Djahit, the judge ignored what is said to be the recommendation of the Sentencing Advisory Council that sentences imposed under the Criminal Justice Act 2003 should be 15 per cent shorter than the sentence that would have been imposed before that Act came into force. He submitted that the range should now be from 4 years 3 months (51 months instead of 60) and about 6 years. If the judge had appreciated this, given that he intended to pass a sentence at the lowest end of the range, he would have sentenced the appellant to a custodial sentence of 4 years and 3 months duration instead of 5 years.
11. Section 172 of the Criminal Justice Act 2003 requires the court, "in sentencing an offender, (to) have regard to any guidelines published [by the Sentencing Guideline Council] which are relevant to the offender's case". The guidelines are not binding on the court, but good reason is required if they are not to be followed.
12. The Sentencing Guideline Council's Guideline New Sentences: Criminal Justice Act 2003, addressed the issues arising from the change in the requirements relating to custodial sentences made by the 2003 Act in paragraphs 2.1.1 to 2.1.9. In so far as is relevant, they stated:

PART 1 – CUSTODIAL SENTENCES OF 12 MONTHS OR MORE

A. Statutory Provisions

2.1.1 Under existing legislation

an adult offender receiving a custodial sentence of at least 12 months and below 4 years will automatically be released at the halfway point and will then be supervised under licence until the three-quarter point of the sentence. [For some, the actual release date may be earlier as a result of release on Home Detention Curfew (HDC).]

an adult offender receiving a determinate sentence of 4 years or above will be eligible for release from the halfway point and, if not released before, will automatically be released at the two-thirds point. After release, the offender will be supervised under licence until the three-quarter point of the sentence.

2.1.2 Under the new framework, the impact of a custodial sentence will be more severe since the period in custody and under supervision will be for the whole of the sentence term set by the court. Additionally, separate provisions for the protection of the public will be introduced for those offenders designated as "dangerous" under the Act which are designed to ensure that release only occurs when it is considered safe to do so.

2.1.3 Where a prison sentence of 12 months or more is imposed on an offender who is not classified as "dangerous", that offender will be entitled to be released from custody after completing half of the sentence. The whole of the second half of the sentence will be subject to licence requirements. These requirements will be set shortly before release by the Secretary of State (with advice from the Governor responsible for authorising the prisoner's release in consultation with the Probation Service) but a court will be able to make recommendations at the sentencing stage on the content of those requirements.23 The conditions that the Secretary of State may attach to a licence are to be prescribed by order.

2.1.4 The Act requires that a custodial sentence for a fixed term should be for the shortest term that is commensurate with the seriousness of the offence.

B. Imposition of Custodial Sentences of 12 Months or more

(i) Length of Sentence

2.1.5 The requirement that the second half of a prison sentence will be served in the community subject to conditions imposed prior to release is a major new development and will require offenders to be under supervision for the full duration of the sentence prescribed by the court. The Probation Service will be able to impose a number of complementary requirements on the offender during the second half of a custodial sentence and these are expected to be more demanding and involve a greater restriction on liberty than current licence conditions.

2.1.6 As well as restricting liberty to a greater extent, the new requirements will last until the very end of the sentence, rather than to the three-quarter point as at present, potentially making a custodial sentence significantly more demanding than under existing legislation. Breach of these requirements at any stage is likely to result in the offender being returned to custody and this risk continues, therefore, for longer under the new framework than under the existing legislation.

Transitional Provisions

2.1.7 In general, a fixed term custodial sentence of 12 months or more under the new framework will increase the sentence actually served (whether in custody or in the community) since it continues to the end of the term imposed. Existing guidelines issued since 1991 have been based on a different framework and so, in order to maintain consistency between the lengths of sentence under the current and the new framework, there will need to be some adjustment to the starting points for custodial sentences contained in those guidelines (subject to the special sentences under the 2003 Act where the offender is a "dangerous" offender).

2.1.8 This aspect of the guideline will be temporary to overcome the short-term situation where sentencing guidelines (issued since implementation of the reforms to custodial sentences introduced by the Criminal Justice Act 1991) are based on a different framework and the new framework has made those sentences more demanding. As new guidelines are issued they will take into account the new framework in providing starting points and ranges of appropriate sentence lengths for offences and an adjustment will not be necessary.

2.1.9 Since there are so many factors that will vary, it is difficult to calculate precisely how much more demanding a sentence under the new framework will be. The Council's conclusion is that the sentencer should seek to achieve the best match between a sentence under the new framework and its equivalent under the old framework so as to maintain the same level of punishment. As a guide, the Council suggests the sentence length should be reduced by in the region of 15%.

When imposing a fixed term custodial sentence of 12 months or more under the new provisions, courts should consider reducing the overall length of the sentence that would have been imposed under the current provisions by in the region of 15%.

13. The Guideline is not without difficulty.
14. Paragraphs 2.1.7 – 2.1.8 suggest that the adjustment should be made to starting points in the pre-April 2003 Court of Appeal Guideline cases.
15. Paragraph 2.19 and the last paragraph (which is highlighted in the Guideline) are more widely stated. The expression "new provisions" in the last paragraph is a reference to the 2003 Act. The expression "current provisions" in that paragraph must be a reference to the [then] "Existing legislation", the effect of which is summarised in paragraph 2.1.1. Applying paragraph 2.1.9 ("best match") and the last paragraph, courts should consider reducing by about 15% any sentence of 12 months or more which attracts the new licence regime, namely the whole of the second half of the sentence will be subject to the licence requirements. Thus if a sentencer in a case for which there were no applicable Court of Appeal guidelines, would have passed a sentence of 18 months under the legislative provisions referred to in paragraph 2.1.1, then, according to paragraph 2.19 and the last paragraph, he must consider reducing the overall length of the sentence by "in the region of 15%".
16. It seems to us that the suggested reduction is not restricted to pre April 2003 Court of Appeal guideline cases. Any such restriction would, it seems to us, introduce an unjustified and irrational distinction between offences which are the subject of such a Court of Appeal guideline and other cases. On the other hand we remind ourselves that, as has been said many times, sentencing is not a mathematical exercise (see e.g. Martin [2006] EWCA 1035, paragraphs 2 and 21).
17. We turn to this case.
18. In paragraph 2.1.9 the Council drew no distinction between a sentence of less than 4 years and one of 4 years or more. However, when on 8 February 2007 the Council Secretariat published their summary of the Guideline, it stated:

The strength of the increased onerousness justification for a reduced sentence is weaker in relation to sentences of four years or longer since release was likely to be earlier under the new framework than under the old albeit that the period of supervision would continue for longer.

19. We agree. In the case of a sentence of 4 years or more, under the legislation as summarised in paragraph 2.1.1, the offender would have been eligible for release from the halfway point, and, if not released before, would have been entitled to have been released at the two-thirds point. If he falls to be sentenced under the Criminal Justice Act 2003, he is entitled to be released at the halfway point; although against this his licence conditions are more stringent. In our judgment, in such a case the benefits and disadvantages to an offender of the change are more or less in balance. In a drugs case such as the present, in practice the offender would have been unlikely to have been released at the halfway point, so that if he falls to be sentenced under the 2003 Act his period in custody is likely to be less. The fact that his period at risk of being returned to prison is longer than it would have been seems, in our view, to be of less importance.
20. In these circumstances, in our judgment the judge was entitled, and indeed right, not to reduce the sentence imposed on the appellant below the lower of the Djahit guideline range. Accordingly, the appeal in relation to the length of the custodial term fails. The sentence of imprisonment will be replaced by a sentence of detention in a young offender institution of the same duration, namely 5 years.