[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lea, R v [2017] EWCA Crim 1789 (02 November 2017) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/1789.html Cite as: [2017] EWCA Crim 1789

[New search] [Printable RTF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		2nd November 2017

Thursday 2^nd November 2017

LORD JUSTICE SIMON: I shall ask the Recorder of Preston to give the judgment of the court.

THE RECORDER OF PRESTON:

1. This is an application for leave to appeal the sentence of 20 months imprisonment imposed on Jessica Lea at Isleworth Crown Court. The Registrar of Criminal Appeals has referred the application to the full court.
2. The applicant pleaded guilty to an offence of conveying a list A article into a prison contrary to section 40B of the Prison Act 1952. The plea of guilty had been indicated in the Magistrates' Court. The offence occurred when she entered HMP Wormwood Scrubs intended to pass 74 grams of cannabis to an inmate she was visiting. She signed a form stating she hadn't any contraband but she was in possession of two packages of cannabis which were secreted on her person. She also had a mobile phone containing relevant text messages and a photograph of a cannabis package between her breasts. She told the police she was visiting a prisoner with whom she was on friendly terms. He was believed by the authorities to be involved in criminal activities in the prison. The applicant told the police she had been instructed to take the packages into the prison and two unknown males had provided them to her, saying that they knew where her mother worked. However she stressed she had not been forced into doing it.
3. The judge said the telephone evidence demonstrated no indication of reluctance and there was no suggestion of coercion. He gave maximum credit for the guilty plea and took into account her good character and the testimonials which spoke about her many good qualities. He referred to R v Rogers [2007] EWCA Crim 2438 and said that it was necessary to impose a deterrent sentence. He said the offence was planned and premeditated and involved a significant amount of cannabis. He said the applicant had been an active and willing participant and the taking of drugs on this scale into a prison required an immediate and significant sentence. He said, "Drugs are a form of currency in prison. They are responsible for injury to persons, particularly prison staff and such offences are too prevalent." He went on to say the applicant would have been well aware of the situation and her approach had been cynical and well thought out. However reduced the starting point because of the personal mitigation and the early plea of guilty.
4. The applicant is 21 years old and has no other convictions. In the pre-sentence report she was assessed as being a low risk of reconviction and a low risk of causing serious harm. At the time of the offence she was studying law at university and was hoping to become a prison officer. The testimonials before the judge suggested the offence was out of character and would never be repeated again.
5. In the Advice on Appeal, Mr Hashmi who appears on behalf of the applicant has stated that although there is not a sentencing guideline for the offence, the drugs offences guideline is relevant. He has pointed out the judge did not state the applicant's role or category under the guideline. It is suggested the starting point should have been that for a "significant" role in category 4. It is accepted the judge was entitled to sentence on the basis she had not been coerced into committing the offence but it is argued the case did not involve street dealing even when considered in its widest context. Therefore the amount of cannabis put the offence into the lowest category. Also, it is argued too much emphasis was placed on the impact of supplying drugs into a prison and insufficient allowance was made for the mitigating factors including that the applicant's father had died just before the offence was committed.
6. Mr Hashmi has referred to other decisions of this court in similar cases though he accepts that each case must be considered on its own facts. He also accepts that only in exceptional cases can immediate custody be avoided and concedes an immediate prison sentence was inevitable in this case. However he submits that the length of sentence was excessive bearing in mind the circumstances and the relevant sentencing guideline. Today he has developed those arguments and has repeated the submission that the sentence was manifestly excessive. He relies in particular on the applicant's role and the appropriate category into which he submits the offence should have been placed.
7. The guideline for drug offences does not expressly refer to offences under the Prison Act 1952. However in R v Kelly Hamilton [2016] EWCA Crim 78 this court stated that it is legitimate when dealing with Prison Act cases involving drugs to at least have regard to the guideline on drugs offences whilst taking care to avoid an over-mechanistic operation of it. The relevant section of the guideline is to be found at page 9 and the degree of harm is normally determined by the weight of the product. The case did not involve street dealing or the supply of drugs into prison by a member of staff. Therefore given 74 grams of cannabis it would normally fall into category 4. At the same time it should be borne in mind the supply of drugs into a prison is an important aggravating feature because they undermine good order and discipline and raise the risk of violence. Drugs in prison are a valuable commodity and weights can be considered in that context. In R v Vergilio Melim [2014] EWCA Crim 1915 it was held that supply into a prison would place the level of sentence at the very top of the appropriate category range.
8. However each case must be considered on its own facts and in this case there was to be the supply of a significant amount of cannabis to a person believed to be involved in criminal activities in the prison. Also, it is clear the offence was planned and bore the hallmarks of organised crime. In these circumstances the case can be distinguished from other cases to which we have been referred and we are satisfied those features should take it into category 3 of harm. It is accepted the applicant had a significant role and therefore under the relevant guideline for a Class B drug offence, the starting point is 1 year's custody and the range is 26 weeks to 3 years custody. The judge appears to have adopted a starting point of about 3 years which is at the very top of the range and in our judgment was too high. The offence involved about 74 grams of cannabis which in a prison setting is a significant quantity and we consider a starting point of about 2 years should have been adopted.
9. Therefore making allowance for the applicant's personal mitigation which was strong and the early plea of guilty, we have concluded a sentence of 12 months' imprisonment should have been imposed. We have considered whether the sentence should be suspended but we are satisfied that an offence of this kind is so serious that only an immediate custodial sentence is justified. Accordingly we grant leave to appeal the sentence and we allow the appeal to the extent the sentence is reduced to 12 months' imprisonment. We confirm the judge's order that 11 days should count towards it under section 240A of the Criminal Justice Act 2003.