[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 >> Dalton, R. v [2009] EWCA Crim 1855 (04 March 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/1855.html Cite as: [2009] EWCA Crim 1855

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

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		4 March 2009

1. LORD JUSTICE AIKENS: Tugendhat J will give the judgment of the court.
2. MR JUSTICE TUGENDHAT: On 7 November 2008 at the Crown Court at Chelmsford, the appellant pleaded guilty to possessing heroin with intent to supply. On 10 December 2008 he was sentenced by Mr Recorder Carr to nine months' imprisonment for that offence.
3. This offence had been committed on 7 December 2007, thus nearly a year before. On the same day, the Recorder sentenced the appellant for his admitted breach of a suspended sentence which had been imposed for an offence of arson, committed as far back as September 2004. That offence was dealt with initially by a two-year community order, which the judge understood had been breached.
4. On 16 June 2006, he was re-sentenced to 12 months' imprisonment suspended for two years. On 10 December 2008, the Recorder reactivated that suspended sentence, and reactivated it in its totality. He ordered the nine months to run consecutively to the reactivated 12 months sentence in respect of the arson. Thus, the total sentence he imposed was one of 21 months' imprisonment, with a direction that the 154 days which had been spent on remand in respect of the arson some years previously should count towards the reactivated suspended sentence. It follows that his expected date of release is 24 May 2009. He appeals against this sentence by leave of the single judge.
5. The facts relating to the drugs offence are that he was seen near an address where the police had executed a warrant under the Misuse of Drugs Act 1971. He was spoken to and asked whether he had any prohibited substance on him. He initially said he did not. He was searched. Two wraps of heroin were found in his pocket, with a total weight of 750 milligrams, split between 338 in one wrap and 377 in the other. One was checked for purity and was found to be 67 per cent pure.
6. When interviewed, he gave an account which formed his basis of plea, namely that he admitted an intent to supply one of the wraps to his girlfriend. He indicated that he had used heroin, as did she, and he was making a purchase and was going to supply one of those to her. We are told by Miss Dyer, who has advanced this appeal with great skill on behalf of the appellant, that the police were not initially satisfied with that explanation, and pursued investigations during the period of nearly one year before accepting that basis of plea.
7. The brief facts in relation to the arson offence are that on 17 August 2004 he had an argument with his partner. He was left alone in their flat. He turned on the rings of the cooker, put some articles on top which then caught light. Damage was caused to the cooker and smoke damage to the flat. He had pleaded guilty to that offence on re-arraignment on 22 December 2004. The two-year community order, with a specified activity requirement, was imposed on 20 January 2005.
8. In passing sentence, the Recorder referred to what he called a "lengthy list" of previous convictions. He stressed the gravity of arson as an offence. He said that by his own admission during the period of the suspension of the sentence imposed on 16 June 2006, the appellant was regularly buying heroin, and he therefore kept offending, although the Recorder was not sentencing him for those offences, which must have been offences of possession of heroin with which the appellant had not been charged. The Recorder referred to counsel's submission that the offence committed in December 2007 of possession with intent to supply was of a different nature to the arson, and that the arson offence had been committed some time ago. Nevertheless, he said that he could find no reason why it would be unjust to activate the suspended sentence, and he activated it in its totality, giving credit for the 154 days served. He then turned to the offence of possession with intent to supply committed in December 2007, and imposed the term of nine months' imprisonment.
9. The appellant was born on 8 December 1971. He has 15 previous convictions for 33 offences, but none of those are drug offences. They are mainly theft and property related offences ending in 1996, with one minor offence of damage to property in 2003. They were, therefore, of little relevance to the offence committed in 2007, and likewise, on account of the passage of time, to the activation of the suspended sentence.
10. The grounds of appeal are that the judge took irrelevant matters into account, namely that the appellant had admitted buying drugs on a number of previous occasions during the period of the suspended sentence for which he had not been indicted. Secondly, insufficient account was taken of the fact that the appellant had not been involved in retail supply, and that he had made admissions which had been honest and frank. Thirdly, it was said in the grounds of appeal that the sentence was manifestly excessive taking into account the well-known case of Afonso [2005] 1 Crim App R (S) 99.
11. The Recorder would, in principle, have been entitled to reactivate the suspended sentence and to make the two sentences consecutive in that that is the normal course, but there was in this case the three matters which militated against taking that course: two were the submissions made by counsel at the time, that the heroin offence was of a different nature from the arson and that the arson offence had been committed some time ago. Those two matters ought to have been taken into account by the judge as grounds for activating the suspended sentence, if at all, for significantly less than the full 12-month period. But if he was considering activating the suspended sentence at all, he was bound to consider what he eventually did, namely ordering that the 154 days spent on remand would count against the reactivated sentence. 154 days custody in effect represents the equivalent of some 44 weeks out of 52 weeks of the sentence that he was reactivating.
12. Accordingly, for that reason, in our judgment the judge could not properly reactivate the suspended sentence in its totality, and in effect, therefore, could not reactivate it in any term that was significantly less than the full term. Accordingly, he had no choice but not to reactivate it. Had he done that, then he would have proceeded simply to consider the sentence to be imposed for the offence of possession. The sentence that he did impose, namely nine months, is consistent with decisions of this court in relation to social supply amongst friends of small quantities of cocaine. One such case is that of Branton-Speak [2007] 1 Cr App R (S) 55, where this court reduced a sentence of 18 months to one of 12 months. There are others. Those, rather than the case of Afonso, provide the relevant guidance, in our judgment.
13. At the start of this hearing, which took an unusual course, we indicated to Miss Dyer that we were minded to accept her submissions on the activation of the suspended sentence, and initially indicated that that might then lead to a conclusion that the appellant could expect to be released imminently. On reflection, we realised that we were mistaken, and that we had to proceed on the footing that no suspended sentence had been activated and we were simply addressing a case of a nine-month sentence of which, as at today, the appellant has served some 12 weeks, or the equivalent of a sentence of some six months. We accordingly invited Miss Dyer to address us on that sentence only. This of course took her somewhat out of her course, and it had been and remained her submission that the two parts of the sentence could not be entirely separated. She submitted that, relevant to the sentence for the possession with intent to supply, was not only the facts arising in 2007, but also material to be found in the psychiatric report prepared for the arson offence back in 2004. In addition, she said that there appeared to have been confusion as to whether the community order had been breached as the judge thought, or whether it had simply been found to be unworkable for reasons which were not the fault of the appellant. There were other matters.
14. In addition, she submitted that the appellant had had to wait the 12 months for the matter to come to court, and to be addressed, as it eventually was, on the basis of the appellant's plea. She drew attention to the fact that there were only two wraps in this case and that the appellant, when asked about it by the police, very quickly indicated that the second wrap was for his girlfriend; whereas, as she pointed out, he could have said nothing of the kind, and the two wraps were not a quantity from which the court could have been sure that, by inference, the appellant was the supplier which she admitted in the event that he was. Accordingly, she submits that he should be given credit for his prompt acceptance and candour in those circumstances.
15. We wish to make clear that nothing in this judgment, which is on rather exceptional facts, should be taken as providing any guidance for any future case at all to the effect that there is anything wrong with a nine-month sentence of imprisonment for a case of social supply of a Class A drug in the quantities which are in issue in this case. However, by reason of the course which the matter has taken, we cannot feel confident that the judge would have imposed the nine-month sentence that he did impose had he taken the right course of not activating the suspended sentence, and we accept that there is force in Miss Dyer's submission that the judge may or certainly ought in those circumstances to have given more weight to the credit due to the appellant for his promptness and candour and to his personal background, which is set out in the documents.
16. In all these circumstances, after careful reflection, we have come to the view that, exceptionally in this case, we can accede to the submission that nine months was too long, and quash both sentences in relation to the possession with intent to supply, and substitute a sentence of six months' imprisonment. To that extent the appeal is allowed.
17. LORD JUSTICE AIKENS: And also, for completeness, the judge's order activating the suspended sentence will itself be quashed, and we believe the effect of that will be that the appellant will be released, if not tomorrow, imminently.