R v Americo Practico Afonso and Others

CourtCourt of Appeal
Docket NumberNo: 04/755-2689-3024/A8
JudgeTHE VICE PRESIDENT
Judgment Date09 Sep 2004
JurisdictionEngland & Wales
Neutral Citation[2004] EWCA Crim 2342

[2004] EWCA Crim 2342

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Before:

The Vice President of Court of Appeal Criminal Division

Lord Justice Rose

Mr Justice Owen

Mr Justice Mitting

No: 04/755-2689-3024/A8

Regina
and
Americo Practicio Afonso
and
Regina
and
Mohammed Sajid
and
Regina
and
Douglas Andrews

MISS GEORGINA GIBBS appeared on behalf of the APPELLANT AFONSO

MR MICHAEL MAGEE appeared on behalf of the CROWN IN THE CASE OF AFONSO

MR ANDREW SMITH appeared on behalf of the APPELLANT SAJID

MR DAVID MUNRO appeared on behalf of the CROWN IN THE CASE OF SAJID

MR J0NATHAN GOODMAN appeared on behalf of the APPELLANT ANDREWS

MISS MARIA DINEEN appeared on behalf of the CROWN IN THE CASE OF ANDREWS

THE VICE PRESIDENT
1

: We have heard three appeals together. There was to have been a fourth case, an Attorney-General's application under section 36 of the Criminal Justice Act 1988, seeking to challenge as unduly lenient a deferment of sentence, but yesterday afternoon the Attorney General, wisely, withdrew that application. These appeals provide an opportunity for this court to give guidance in relation to the sentencing of a particular group of offenders within the category of retail suppliers of Class A drugs identified in Dhajit [1999] 2 Cr App R (S) 142 and Twisse [2001] 2 Cr App R (S) 37. We take into account the guidance given in relation to the making of drug treatment and testing orders in Attorney-General's Reference No 64 of 2003 [2004] 2 Cr App R (S) 106; [2004] Crim LR 241.

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 and Others(Attorney-General's References 13 to 18 of 2004 [2004] EWCA Crim 1885; The Times, 17th August 2004.

3

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 drug 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.

4

There will be some such adult and young offenders for whom a drug treatment and testing order will be appropriate in the circumstances indicated in Attorney-General's Reference No 64 of 2003, to which we have already referred. Where such an order is not appropriate, generally speaking, adult offenders in the category we have identified, if it is their first drugs supply offence, should, following a trial, be short-term prisoners, and, following a plea of guilty at the first reasonable opportunity, should be sentenced to a term of the order of two to two-and-a-half years' imprisonment. For young offenders, the custodial term is likely to be less.

5

It has long been recognised that this court has power to review existing tariffs upwards or downwards: see, for example, Avis [1998] 2 Cr App R (S) 197, Ollerenshaw [1999] 1 Cr App R (S) 65; Attorney-General's Reference No 3 of 1996 (Latham) [1997] 2 Cr App R (S) 10, and Kefford (2002] 2 Cr App R (S) 495. It accordingly would not be appropriate, for the reasons explained in Graham, [1999] 2 Cr App R (S) 312 at 315, for this judgment to be regarded as a basis either for applications for leave to appeal against sentence out of time or for references to this court by the Criminal Cases Review Commission.

6

We turn to the three appeals before us. As will appear, none of these appellants falls entirely within the group which we have identified. All of them supplied undercover officers, were addicted to a Class A drug and had no previous drug convictions, but Andrews had stock, Alfonso and Sajid supplied more than one Class A drug, and Sajid's appeal depends primarily on disparity with his co-accused.

7

Alfonso, who is now 37, pleaded guilty at Peterborough Crown Court on 16th January 2004 to a number of offences for which he was sentenced by His Honour Judge Coleman. There were four counts of supplying heroin, for which he was sentenced to five years' imprisonment on each concurrently, two counts of supplying crack cocaine, for which he was likewise sentenced to five years' imprisonment concurrently and concurrently to the sentences for heroin offences, and there was a further offence of being concerned in supplying heroin, for which he was sentenced to three years' imprisonment concurrently. His total sentence was therefore five years' imprisonment, and orders were made for forfeiture and disposal of the drugs under section 27 of the Misuse of Drugs Act 1971. He appeals against sentence by leave of the single judge.

8

The facts were these. In September 2003, police officers mounted an undercover operation targeting drug dealers in Peterborough. On 15th September 2003, an undercover officer entered a centre for the homeless asking for someone called Lucy and he met the appellant. They left together. In the ensuing conversation, the appellant asked if the officer was looking for heroin. In consequence, two telephone calls were made, a third male was met, and the appellant, who on this occasion had drugs in his possession, handed the officer a wrap of heroin in exchange for £10.

9

Three days later, on the 18th, the appellant supplied the officer with £20 worth of cocaine, which he obtained for another man, and he also arranged for another man to supply the officer with heroin. The next day, the 19th, the appellant supplied the officer with crack obtained from another man; on the 23rd he supplied the officer with £10 worth of heroin obtained from another man, and he did precisely the same again on the 25th September.

10

In passing sentence, the learned judge said that there was an issue as to what the precise role of the appellant was. His offending had been brought about by his £150 a day addiction to crack cocaine, but he was trying to rid himself of that addiction, which was to his credit.

11

The operation in the course of which the appellant had been arrested was directed at a further drug-dealing operation which had sprung up as a consequence of the closing down of an earlier operation in Peterborough. The judge described what the appellant and others were doing as "filling the vacuum" that the closing down of the earlier operation had caused.

12

The learned judge referred to the appellant's record. He has no previous convictions in relation to drugs, but he has a substantial record over a four-year period from late 1999, particularly of offences of shoplifting, for which he has been dealt with by the magistrates in a variety of ways, including, in 2001, the making of a drug treatment and testing order —an order which was revoked a few months later when a one-month sentence of imprisonment was imposed. Thereafter, he continued to shoplift. During 2002 and early 2003, a community punishment order, a community rehabilitation order and then sentences of imprisonment, the longest of which was three months, were imposed. In the autumn of 2003, he continued to shoplift, having a knife with him on one occasion, and sentences of seven days' imprisonment and by way of a deferred sentence were passed. It was against that background that these offences were committed in September 2003.

13

A pre-sentence report obtained for magistrates in relation to offences of theft in September 2003 assessed the risk of him reoffending as high and continuing to remain high unless he addressed his drug addiction. An addendum to that report in January 2004 said that there was a high risk of reoffending if the defendant, who at that time had stopped taking drugs, reverted to his old ways when back in the community.

14

On Alfonso's behalf, Miss Gibbs stresses the plea of guilty at the earliest opportunity, the absence of drugs convictions from the appellant's record and the continuing drug-free state of the appellant in prison. She says that the appellant made no profit from these dealings, which were prompted by his addiction, though she accepts, of course, that he dealt with two different kinds of Class A drugs. She points out that, because the appellant had himself been an addict for some three years, that is to say addicted to crack cocaine, he knew a number of suppliers and therefore it is unsurprising that he sought, for others in the supplies which he made to these officers, a number of different sources of the drugs. She points out the relatively short period over which these drugs were supplied; though it is to be observed that they were supplied on virtually a daily basis. It is also apparent, both from Miss Gibbs' submissions and from...

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