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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 >> Harding, R. v [2007] EWCA Crim 2634 (22 October 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/2634.html Cite as: [2007] EWCA Crim 2634

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2
		22 October 2007

Monday 22 October 2007

THE LORD CHIEF JUSTICE:

Introduction

1. In November 2005 the police became aware that there was a significant increase in the use of heroin in the area of Camborne in Cornwall, as evidenced by the quantity of needle exchange packs being issued to heroin addicts. This led them to conduct, between 5 and 16 December 2005, an undercover operation ("Operation Auriga") in which two police officers, using the names "Kenny" and "Becky" posed as drug addicts seeking to purchase drugs at street level. This operation enabled them to identify two men, each of whom was running from his home a business of retailing heroin, using drug addicts to carry out the individual transactions. One was William Harding and the other was Clayton Hawkes. Each was prosecuted for drug offences. The former pleaded guilty; the latter was convicted after a trial.
2. The Attorney General applies, pursuant to section 36 of the Criminal Justice Act 1988, for leave to refer to this court for review the sentences imposed upon the offenders on the ground that they were unduly lenient. We grant leave. We shall set out the facts in relation to each before considering the individual issues.

Paul William Harding

3. The offender Harding is aged 32. He was charged on indictment with eight counts relating to the supply of controlled drugs of Class A, namely heroin, and the possession and supply of controlled drugs of Class C, namely cannabis resin.
4. At the plea and case management hearing on 10 November 2006 he pleaded not guilty to each count he faced. On 4 June 2007 (the first day of his trial) he applied to be re-arraigned and pleaded guilty to three counts of being concerned in the supply of a controlled drug of Class A, namely heroin; one count of offering to supply a controlled drug of Class A, namely heroin; one count of possessing a controlled drug of Class A, namely heroin, with intent to supply it to another; and one count of possessing a controlled drug of Class C, namely cannabis resin.
5. On 24 July 2007, in the Crown Court at Truro, he was sentenced by His Honour Judge Rucker on each count concurrently to a term of imprisonment of 12 months, suspended for two years, with a two year supervision order, a 12 month Drug Rehabilitation Requirement, and an order that he attend an Addressing Substance Related Offending Programme as directed by the Probation Service.
6. The undercover police operation revealed that Harding was running a small-scale drugs business from his home, supplying small quantities of heroin to heroin addicts. When he was arrested at his home in January 2006, he was found to be in possession of £200 worth of heroin, and drug-dealing paraphernalia, together with a quantity of cannabis resin for supply.
7. Four others were charged with Harding, namely Stuart Gilbert, Jonathan Falls, Paul Sharp and Mark Seymour. Stuart Gilbert pleaded guilty at the first opportunity at the magistrates' court to three counts of supplying heroin. Jonathan Falls and Paul Sharp each pleaded guilty on 5 January 2007 to one offence of supplying heroin. Seymour became ill and the proceedings against him were not pursued. Falls and Gilbert were sentenced to community penalties. Sharp was sentenced to a six month suspended sentence of imprisonment. No application has been made to refer those sentences to this court.
8. The two undercover police officers had no difficulty in discovering Harding's activities. On the first occasion that they made enquiries in the centre of Camborne about the possibility of buying drugs they were led to a flat where, after waiting for a consignment of drugs to arrive, they were supplied with a wrap containing 0.129 grams of diamorphine at a cost of £20. They obtained similar quantities from that flat on three other occasions. When they raided the flat they found Gilbert, who was the tenant, sleeping on the sofa and Harding in the bedroom.
9. Harding has a lengthy and copious criminal record, which is summarised as follows in the pre-sentence report:

"3.4 Prior to the current offences in December 2005 Mr Harding had not been before the court since December 2004 and it is of note that the current offences are the only convictions in two and a half years. Most sentencing options available to the court, including a 2 year custodial sentence, have been utilised but none have worked to prevent re-offending. Previous supervision was also breached but this is related to a chaotic lifestyle brought about by the destructive nature of heroin addiction and the impact upon Mr Harding removing most of his ability to behave reasonably."

The report went on to record that Harding was living with his partner, was in part-time employment and that his partner was in employment. The report made the following comments on the sentencing options:

"3.8 A referral to the Criminal Justice Integrated Team for a Drug Rehabilitation Requirement assessment was made following the last appearance in court by Mr Harding and he has applied himself well to the requirements of that assessment. I understand from staff at the Criminal Justice Integrated Team that Mr Harding has provided his first sample that indicated he was clear of illicit drugs on 26 June 2007 and this alone is a major achievement for him. It is early days but medical staff are impressed by the motivation demonstrated by Mr Harding and he is considered suitable for a Drug Rehabilitation Requirement set at a medium level at this time. With regard to alcohol Mr Harding stated that he does not drink beyond a celebratory drink at Christmas and there has never been any problems.

....

4.1 It is my opinion that the risk of harm to the public is low and the risk of further offending is relatively high because Mr Harding has only just begun the long road to overcoming his addiction to heroin. He has made a positive start but maintaining the change can be a difficult path to follow and certainly more difficult than serving a custodial sentence for Mr Harding.

....

5.2 As custody is an option, I am required to comment on any expected adverse effects for Mr Harding. Such a sentence holds little fear for Mr Harding as he has competed several periods in custody previously. He does not wish to return but it would provide the easier path for him at this time. He has part-time employment which would resume following any sentence and his partner would retain their accommodation until his return but it is more likely that there will be no positive outcome to such a sentence and a high risk of continuing drug use following release."

The report then went on to recommend a suspended sentence on the terms that the judge was to adopt.

10. In his sentencing remarks the judge made the following comments that were relevant to the three defendants before him:

"Into this equation comes the less than coherent messages from London, whether it is from Parliament or the Court of Appeal. There is a huge raft of legislation from this Government that urges one to sling people in prison and throw the key away. Sadly they have not built the buildings to keep these new prisoners in. And it is a fact of life that our prisons have burst at the seams, so that other accommodation, even court cells and police stations, have to be used. And the message from the Court of Appeal not long ago was: judges please do not send people to prison unless the case is serious and/or the defendant is a danger to the public. Not one of these men that I have tried in relation to Auriga could be regarded as dangerous Class A drug peddling is always serious, but I repeat that there must be some levels at which it does not demand a custodial sentence.

The most dangerous person of all the ones I have dealt with was obviously Clayton Hawkes. He suffered mental illness from his drug taking, but I still regarded him, and I think rightly so, as a maligned personality with, despite his drug taking, quite a lot of intellectual ability left and the power to organise other people to do his bidding. And I did in the end send him to prison He had, of course, pleaded not guilty, which enabled me to get a good look at him. But quite from the fact that he pleaded not guilty, he had shown not the remotest signs of remorse or the wish to change or rehabilitate. On the contrary, he remained a very difficult and enigmatic person, not least for his defence team.

People who peddle drugs as these defendants did always run the risk of corrupting the innocent, but in this case the general picture is of the drug scene in Camborne, where a number of addicts find what they want on the streets of Camborne in the way that the evidence showed in this case. But that did not show the corruption of the innocent. All these events happened a long time ago and I think that it important, partly because justice should follow quickly on the event, and party because if there has been a long time between the offence and the sentence, then it is very important to look at what has happened in the meantime. And a defendant who really does regret what he has done and wants to put matters right has the opportunity to do it. And in all three cases here the time has been usefully [spent] and various people, because I have got reports from more than one source, are impressed that you three defendants do want to change, have made various steps forward towards change and therefore have used the time effectively."

(The reference to Clayton Hawkes was made in circumstances where the judge had recently sentenced him. We shall look at his sentencing remarks on that occasion in a moment.) In addressing Mr Harding, the judge said:

"I have dealt with what I thought of Clayton Hawkes. In a sense you, Mr Harding, could be described in the same light. You have pleaded guilty to a number of counts reflecting a much more active part in this matter. But you pleaded guilty and above all, and this is what is most important, you have used your time usefully. And at the end of the day, although you have committed quite serious offences, you are no longer, even if you were a year or more ago, dangerous. On the contrary, you are striving to get back into the ordinary world of having an ordinary life."

Clayton John Hawkes

11. The offender Hawkes is aged 38. He was charged on indictment together with seven others, namely Keith Coles, Annette Kaute, John Clark, David Carver, Dean Hartley, Matthew Falls and Michael Bagley, with conspiracy to supply controlled drugs of Class A, namely heroin. The conspiracy ran between 1 August 2005 and 13 January 2006. Eventually all but two (Hawkes and Clark) pleaded guilty. Clark was acquitted. Hawkes alone was charged with further offences relating to his possession of drugs and possession of prohibited weapons.
12. On 3 May 2007, following a nine day trial in the Crown Court at Truro, Hawkes was convicted of conspiracy to supply controlled drugs of Class A, namely heroin; simple possession of small quantities of crack cocaine and ecstasy (controlled drugs of Class A) and of herbal cannabis and cannabis resin (controlled drugs of Class C); possession of a stun gun, contrary to section 5(1)(b) of the Firearms Act 1968 (a prohibited weapon); and possession of a pepper spray, contrary to section 5(1)(b) of the Firearms Act 1968 (again a prohibited weapon).
13. On 18 May 2007 he was sentenced by His Honour Judge Rucker to two years' imprisonment. The sentence was made up of two years' imprisonment for conspiracy to supply a controlled drug of Class A; no separate penalty for the offences of simple possession of controlled drugs; and twelve months' imprisonment for the two offences of possessing a prohibited weapon, to run concurrently. Forfeiture orders were made in respect of the controlled drugs, the prohibited weapons and other items.
14. The facts shortly were that between August 2005 and January 2006 Hawkes ran a business from his home that supplied small quantities of heroin at street level in Camborne, Cornwall, via a number of "runners" who sold the drugs on his behalf in exchange for cash and/or stolen property. Between 7 and 17 December 2005 undercover police officers purchased small quantities of heroin in the street from "runners" acting on his behalf on five occasions. Of the others charged with him, Kaute was his girlfriend who lived with him and played a very minor role in assisting his dealing. She was undoubtedly under his influence. The others were "runners" who dealt on his behalf on the street. All involved were addicts whose primary motivation in dealing was to raise money to feed their addictions. When police entered and searched his home in January 2006 they found a sophisticated CCTV system, drug dealing paraphernalia, small quantities of drugs, stolen property, £500 cash, and two prohibited weapons, namely a stun gun and a pepper spray, as well as other weapons.
15. The sentences imposed on the other offenders in the proceedings were as follows: Coles, a 12 month suspended sentence order with requirements of supervision and drug rehabilitation (following a late plea of guilty to conspiracy to supply controlled drugs of Class A); Kaute, a six month suspended sentence order, with a requirement that she undergo medical treatment for a mental health illness (following a late plea of guilty to conspiracy to supply controlled drugs of Class A); Hartley, nine months' imprisonment (following a late plea of guilty to conspiracy to supply controlled drugs of Class A); Falls, a community order with requirements of supervision and drug rehabilitation (following a late plea of guilty to conspiracy to supply controlled drugs of Class A); Carver, a community order with requirements of supervision, drug rehabilitation, and unpaid work of 100 hours; and Bagley, a community order with requirements of supervision and drug rehabilitation.
16. The Attorney General initially sought leave to refer the sentences in the cases of Coles, Hartley and Falls, but on review the applications have been withdrawn. No application was made in the case of any of the other offenders.
17. As we have recounted, on five occasions the undercover policemen purchased small quantities of heroin from one of the addicts that Hawkes used as his "runners". They were able to see that these were collected from, or from the vicinity of, Hawkes' home in Commercial Street, and were informed on occasion that Hawkes was the source of the drugs. On one occasion, having been invited to enquire by one of the undercover police officers, who said that he was going shop-lifting, an intermediary reported that Hawkes would welcome, by way of consideration for drugs, towels and bed sheets that were on sale at Woolworths.
18. When the police searched Hawkes' home they found no substantial amounts of heroin, but they did find paraphernalia consistent with the address being used for the preparation of small quantities of heroin for supply, and taking drugs. They found plastic wraps, electronic scales and a measuring spoon that had traces of heroin on them. There was a sophisticated CCTV system near the front door.
19. Inside the flat were a wrap containing 0.42 grams of crack cocaine, worth £40; ten ecstasy tablets; 2.37 grams of herbal cannabis; and 5.34 grams of cannabis resin. Hawkes had 1.25 grams of crack cocaine, worth £120, concealed in his backside. He had £500 cash in his wallet.
20. Stolen property was found: two Alba CD Walkmans and two sets of hair-straighteners, identified as having been stolen from a local shop in December 2005; and a hand-held computer and a mobile telephone identified as having been stolen in a burglary at a house in Camborne in September 2005. There were also considerable quantities of toiletries.
21. On Hawkes' bed police found a stun gun that was capable of delivering 100,000 volts and a pepper spray. Both are classed as prohibited weapons as defined in section 5(1)(b) of the Firearms Act 1968 as amended. He also had a meat cleaver that he kept on the floor by the living room door.
22. Thirteen mobile phones and a number of SIM cards were found at the address. They provided evidence of telephone contact and text messages dating back to August 2005 sent and received pursuant to dealing in drugs.
23. In addition, telephones in Hawkes' possession provided evidence of very substantial contact with a man called John Ford, who was convicted at Sheffield Crown Court in October 2006 of conspiracy to supply heroin. In particular, there was evidence of 130 calls made to the offender's mobile from Ford's landline between 16 October and 31 December 2005. A further 49 calls were made from Hawkes' mobile to Ford's landline in December 2005. Ford lived in Hayle, Cornwall, and in the period of this indictment he was found to have made payments for heroin totalling £6,500.
24. Hawkes also had a lengthy and copious criminal record stretching back to 1984. This included seven drug offences (although none in relation to Class A drugs), and 17 theft and kindred offences. He had been sentenced to one term of three years' imprisonment for a sexual offence, and a number of short terms for dishonesty offences. A psychiatric report concluded that Hawkes had symptoms of an emerging psychosis, which might be paranoid schizophrenia but required further investigation.
25. When sentencing Hawkes the judge made the following remarks:

"Acknowledging the fact that you are mentally ill, I nevertheless still think that you are an intelligent, manipulative and really rather sinister character. .... now you are in the place where you should be and for some time to come, and that is behind bars. You certainly do come within the ambit of the Court of Appeal's guideline in the case of Afonso, but you were not just an out-of-work addict whose motive was solely to finance the feeding of your own addiction, who held no stocks of drugs and who was shown to have made a few retail supplies of the drug to which they were addicted to undercover police officers.

You had other aspects to your case. The first is that you were not the runner, you were the organiser. You got other people, a number of other people in your network, to do the running and fetching for you. The police never found very much in the way of stock but I have no doubt at all that you had access to as much heroin as you wanted, that you were clever enough not to keep it anywhere that the police could find it. They did find eleven bags when they arrested Coles and I have no doubt that was your stock, he being your driver and right-hand man.

Your flat was chaotic, that I acknowledge, and showed no signs of wealth, but you had only just moved in. But I think I am right in recollecting that you had already set up some surveillance equipment and you had the two weapons which you would have used, I have no doubt, if you had got into trouble over your drug-dealing.

What Afonso says is that for a person in your position who has pleaded guilty, one is looking at around two to two and a half years' imprisonment. You did not plead guilty, so you do not have that mitigation and the effective recommendation of the Court of Appeal is that anything up to but not including four years would be appropriate, so that you remain a short-term prisoner.

However, I do have to take into account the fact that you are mentally ill. I do have to have some regard to disparity of sentence, but I think I am justified in being lenient on your runners and fetchers, which I have indicated yesterday. But there is no doubt in my mind that you deserve to go to prison."

26. On behalf of the Attorney General similar submissions are made in respect of each of the offenders by Mr Denison. He submits that the sentences imposed in each case deviated so significantly from the relevant sentencing authorities that they were unduly lenient and should be increased. He submits that it would be quite wrong to compare the facts of either offence to the facts of R v Afonso [2005] 1 Cr App R(S) 99, [2004] EWCA Crim 2342. On the contrary, he submits that the appropriate sentencing authority is R v Twisse [2001] Cr App Rep (S) 37, BAILII: [2000] EWCA Crim 98. He submits that it is essential that the courts should always follow the relevant authorities, not merely to punish offenders but to ensure insofar as it is possible that others are deterred from similar conduct. So far as Hawkes is concerned, it is also submitted on behalf of the Attorney General that the offences of possessing offensive weapons were serious offences in their own right and should have attracted consecutive sentences, or at least have resulted in a significant increase in the sentence imposed.
27. On behalf of Harding, Mr Leadbetter has adopted a realistic approach. He accepts that the sentence imposed upon Harding was a very lenient sentence; but he submits that the judge (who was the senior judge in the county) was uniquely placed to decide the appropriate sentence. A significant period had passed since the offences which enabled him to appraise the conduct of Harding since the offences and to impose an appropriate sentence. It fell within his discretion, if the facts justified it, to depart from the guideline cases. That is what he did on this occasion. He was justified in so doing. He adopted a course aimed at the rehabilitation of Harding which, on the supplementary report prepared for this court, appears to have real prospects of success. In that report prepared by Sara Payne, the probation officer, it is said:

"It is my opinion that Mr Harding is extremely motivated and has the capacity to complete the order successfully. The Criminal Justice Community Drugs Team is of the same opinion and extremely pleased with his excellent progress to date. It is an unusual for an individual to progress at this rate at such an early stage."

28. Mr Linford was also realistic. He accepted that the sentence imposed upon Hawkes appeared lenient. But he submitted that we should not lightly interfere with the sentence of this experienced resident judge who had sat through a nine day trial and, from what he saw of Hawkes, was able to appraise his unhappy mental condition which resulted in him appearing in court late day after day. There had even been an issue as to whether he was fit to plead, and there was evidence that he might be suffering from paranoid schizophrenia.
29. Mr Linford referred us to statements which the judge had made when sentencing the other offenders the day before he sentenced Hawkes. He said:

"This was a very minor operation, selling by addicts to addicts that was intercepted by two undercover police officers who were obviously not made drug addicts because of that because they took the drugs back for analysis. Clayton Hawkes has screwed his brain up through taking drugs and undoubtedly is at certain times mentally ill. Mr Linford had a hard road to hoe representing him for the reasons we all know. But in the end my judgment of him was that he was the evil person in this conspiracy. It was his conspiracy. It was he who drove it.

He had, however scrambled his brains were, enough intelligence and [wolfishness] and organisational ability to make this thing work. It did not make him rich, but it kept him in drugs. His house looked a mess, but he had only just moved in, but he was still not making a lot of money out of it. But that is a very good litmus test of how low down the scale of conspiracies this was. This was not what really needs to attacked and dealt with by way of really long sentences. That is people importing and distributing drugs on a huge scale and doing so in such a way that they made huge sums of money."

30. Mr Linford warned us against drawing conclusions from some of the items that were found in Hawkes' house, in particular the large number of mobile phones. He pointed out that this was a house shared by four or five others. He also informed us that in the course of the trial the prosecution conceded that there was no evidence that Ford had been supplying Hawkes with heroin, and that Ford and Hawkes had known each other for some time in the past, so that it would not be right to draw adverse inferences from the number of telephone calls that passed between them. He submitted that this was a case of a hopeless drug addict feeding his own addiction. While the case was not on all fours with Afonso, it had much in common with the facts of that case, and it should not be compared with Twisse.
31. These cases illustrate how anti-social the trade in drugs can be, with dealing taking place openly in the streets of Camborne and drug addict being encouraged to resort to shop-lifting in order to pay for their supplies. We believe that most of the citizens of Camborne will be primarily concerned that the exemplary action taken by the police should result in a long-term reduction in these undesirable consequences. Sentencers can properly have particular regard to the prospects of rehabilitation when choosing between sentencing options. It is an unfortunate fact that the current overcrowding of the prisons makes it more difficult to provide rehabilitation for those in custody. In each of the cases before us the judge concluded that the offences were so serious that they could only be dealt with by custodial sentences. In the case of Harding, however, he concluded that he could properly impose a suspended sentence of twelve months, subject to conditions that, in accordance with the recommendations of the pre-sentence report, appeared to carry prospects of rehabilitation that would be lost if Harding was subjected to immediate imprisonment. This course was undoubtedly lenient, having regard to the length of the term of immediate imprisonment that Harding could reasonably have expected. Harding had a very lengthy criminal record. Most of the offences reflected his addiction to drugs. Paradoxically, a lengthy series of previous offences can sometimes justify a lenient course because an experienced judge may see that there is a rare opportunity that an offender may, at the point in time when he is being sentenced, be open to real prospects of rehabilitation if given appropriate treatment. This, it seems to us, was such a situation. The scale of dealing in Harding's case was modest. In these circumstances we consider that it was open to the judge to impose a sentence with rehabilitation in mind, namely a suspended sentence on the terms imposed. This was deliberately lenient, perhaps very lenient, but did not in our view amount to undue leniency. For these reasons we do not propose to alter Harding's sentence.
32. As for Hawkes, once again the judge recognised that he was imposing a lenient sentence. He appears to have done so, however, by reference to the case of Afonso. We are puzzled by this. The judge remarked to Hawkes that he certainly came within the ambit of the Court of Appeal's guidelines in Afonso, but then proceeded immediately to identify the respects in which Hawkes' case differed from that of Afonso.
33. In delivering the judgment of the court in Afonso, the Vice-President Rose LJ said this:

"2. Nothing which we say is intended to affect the level of sentence indicated by Djahit and Twisse for offenders, whether or not themselves addicts, who, for largely commercial motives, stock and repeatedly supply to drug users small quantities of Class A drugs: and, as was pointed out in those authorities, as well as other authorities, the scale and nature of the dealing are important when deciding the level of sentence. Nor does anything we say call into question the propriety of the levels of sentence for the supply of drugs in the circumstances dealt with in McKeown ....

But there is a group of offenders who supply class A drugs for whom we believe that the level of sentence indicated by Djahit and Twisse, namely in the region of six years following a trial, is disproportionately high and we think some review is called for. These are the offenders who are out-of-work drug addicts, whose motive is solely to finance the feeding of their own addiction, who hold no stock of drugs and who are shown to have made a few retail supplies of the drugs to which they are addicted to undercover police officers only. An unemployed addict has, in practical terms, three means of financing his or her addiction -- prostitution, theft or supplying others; and sentencers should recognise that, in consequence, his or her culpability is likely to be less than that of many other suppliers. Furthermore, if they are shown only to have supplied undercover police officers and hold no stock for supplying others, the harm caused by their conduct is comparatively slight."

34. That passage only has to be read for it to be quite apparent that it is not apt to describe the activities of Hawkes. Hawkes had for five months been running a sophisticated small business retailing Class A drugs. The distinction between his case and that of Twisse appears to be the distinction drawn by the Vice-President when he spoke of offenders, "whether or not themselves addicts, who, for largely commercial motives, stock and repeatedly supply to drug users small quantities of Class A drugs". It has been accepted by the prosecution that the primary motive for Hawkes' activities was to feed his own drug habit. Nonetheless, it seems to us that his case comes closer to that of Twisse than Afonso.
35. Further, Hawkes was also found guilty of possessing two offensive weapons which the judge found he had in order to use them if necessary. Not merely were these indicative, as was the sophisticated CCTV system, of professional drug dealing; their possession constituted serious offences in their own right. A drug dealer who is prepared to resort to violence and who keeps weapons for that purpose must expect that any sentence imposed on him will be significantly increased to reflect that fact. We consider that normally this should be emphasised by the imposition of consecutive sentences. In the case of Hawkes, the judge does not appear to have reflected the two counts of possessing an offensive weapon in the overall sentence. This approach was wrong in principle.
36. For all these reasons we are persuaded that Hawkes' sentences was unduly lenient. To what extent should the sentence be increased? We consider that we should have regard to the judge's decision that it was appropriate to show leniency to reflect the personal mitigation of Hawkes' mental condition. We have received, and have had regard to, a moving letter from his father and another from a friend about his mental condition. Adopting an approach of leniency, we will substitute a sentence of three years' imprisonment for the sentence of two years imposed in relation to the offence of conspiracy to supply a Class A drug, but we will also order that the two concurrent sentences of twelve months' imprisonment for possessing an offensive weapon are to be served consecutively to the sentence of three years, imprisonment, making a total term of four years' imprisonment.