R v Christiana Boakye and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HUGHES |
| Judgment Date | 03 April 2012 |
| Neutral Citation | [2012] EWCA Crim 838 |
| Docket Number | No. 2012/00651/A6, 2012/00659/A5, 2012/00748/A6 |
| Court | Court of Appeal (Criminal Division) |
| Date | 03 April 2012 |
[2012] EWCA Crim 838
Lord Justice Hughes
(Vice President of the Court of Appeal Criminal Division)
Mr Justice Treacy
and
Mr Justice Globe
No. 2012/00651/A6, 2012/00659/A5, 2012/00748/A6
2012/00706/A5, 2012/00792/A2, 2012/00682/A6
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
Mr E Fitzgerald QC and Miss A Timan appeared on behalf of the Applicants
Mr J Price QC appeared on behalf of the Crown
Tuesday 3 April 2012
We have before us six applicants who were sentenced for bringing into this country sizeable quantities of Class A drugs (in each case cocaine). None is shown to have engaged as entrepreneur in the large-scale buying, importing and selling of the drug, but each worked, directly or indirectly, for people such as we have just described. Each fell to be dealt with for a single transaction, having been caught bringing the drug through customs control. The quantities each carried varied, but they were all sizeable. The smallest was about 1 kilogram, and the largest was as much as 7.35 kilograms (in each case the gross weight, which is the relevant figure). The quantity of the smallest was about 660 grams at 100%, and the largest as much as 4.8 kilograms at 100% purity.
It follows that the drugs that were carried into the country were worth very large sums of money indeed. Moreover, and more significantly, they had the potential to cause untold misery, addiction, further crime and further victims.
All of the applicants could properly attract the description "courier" in the sense that they were all dealt with on the basis that the drugs they carried belonged to others. It is important to say that that does not mean that all who can attract that description are the same. They are not. Their culpability is likely to vary. At its simplest there are those who are exploited or oppressed by others, and there are those who engage voluntarily in the couriering of drugs, are in it for the money and have the freedom to make the decision. There are many other gradations of culpability which it is unnecessary at present to attempt to sketch. In the present cases the culpability of the six applicants varies. We shall return later to the manner in which such variation in culpability is addressed for the future in the new Sentencing Council Guideline.
The factor which is common to these six cases, and the reason why they have been listed together, is that all of the applicants were sentenced before the coming into operation on 27 February 2012 of the recent Sentencing Council guideline. Some of the applicants were sentenced a very long time before that. Nevertheless, all of them contend that it is because of the new guideline that their sentences ought to be reduced to what it is suggested they might now be if the facts of their cases were to recur. It is expressly not contended on behalf of any of the applicants that her sentence was other than in line with well-established sentencing authorities and practice in force at the time that she was sentenced. Accordingly, the short common point of principle is whether this new guideline operates retrospectively to render manifestly excessive sentences which when passed were in accordance with prevailing practice, as explained in a very long-established series of cases in this court.
The applicants were sentenced as follows—and we take them simply for convenience in chronological order:
(a) Shireen Jagne (now aged 44) committed her offence on 18 June 2008. She brought in 7.35 kilograms of cocaine (4.81 kilograms at 100% purity). She contested the case. She was sentenced on 10 December 2008 to twelve years' imprisonment.
(b) Ifeoma Nwude (now aged 37) committed her offence on 30 November 2008. The gross quantity she brought in is not known, but at 100% purity it was 1.84 kilograms. She contested the case. She was sentenced on 30 October 2009 to twelve years' imprisonment.
(c) Rebekah Alleyne (now aged 23) committed her offence on 20 February 2009. She brought in 3.81 kilograms gross (2.83 kilograms at 100% purity). She contested the case. She was sentenced on 3 February 2010 to ten years' imprisonment.
(d) Christiana Boakye (now aged 49) committed her offence on 15 November 2010. She brought in 3.97 kilograms gross (3.37 kilograms at 100% purity). She pleaded guilty promptly and was sentenced on 18 November 2010 to eight years' imprisonment.
(e) Sbida Nasri (now aged 23) committed her offence on 23 October 2011. She brought in 1.73 kilograms gross (1.3 kilograms at 100% purity). She pleaded guilty and was sentenced on 5 January 2012 to seven-and-a-quarter years' imprisonment.
(f) Donna Latchman (now aged 34) committed her offence on 31 October 2011. The quantity was 1 kilogram gross (two-thirds of a kilogram at 100% purity). She pleaded guilty and was sentenced on 19 January 2012 to five years' imprisonment.
The new guideline, which has been debated before us, was published on 24 January 2012. In bold print at the beginning appears the following statement:
"It applies to all offenders aged 18 and older, who are sentenced on or after 27 February 2012, regardless of the date of the offence."
The time for bringing to this court an application for leave to appeal against sentence is 28 days from the passing of the sentence. There is good reason for that. Late applications clog up current and meritorious cases. Moreover, everybody concerned with cases (and we do not mean simply the defendant, but all concerned on both sides, and those interested in the fate of the defendant) is entitled to know promptly the final outcome.
In this case the first four applicants seek extensions of time in order to bring their applications for leave to appeal against sentence. The court has power to extend time in an appropriate case. Its practice is to do so, however, if, but only if, injustice would otherwise follow, or there is some compelling reason to do so. In the present case the extensions sought are respectively these: Jagne, just short of three years; Nwude, about two-and-a-quarter years; Alleyne, a little under two years; and Boakye, about one year. It is frankly admitted that, on advice, each of them deliberately abstained from making her application at the right time, but rather waited until the new guideline was available and could be asserted to be relevant.
In producing the new guideline, the Sentencing Council expressly made clear that in most respects, although it adopts a modified and clarified method of reasoning, it is expected to produce sentences broadly in line with existing practice. The Council, however, anticipated that its approach would result in reductions in sentence for a certain sub-class of courier (commonly, if inaccurately, known as "mules"). The sub-class in question is the group of disadvantaged defendants, particularly those from an under-developed country, who have been exploited by serious drugs criminals and persuaded to carry drugs often for very small reward. We agree that for such defendants the new guideline will often result in a shorter sentence, and on many occasions a significantly shorter sentence. We do not agree that the present applicants all fall into that category. Indeed, it is clear that some of them do not. However, it follows from what we have said that the question that arises is whether or not the new guideline operates retrospectively. This has been the principal point argued and we deal with it first.
The Sentencing Council's new Guideline, is it retrospective ?
Mr Fitzgerald QC, on behalf of all the applicants, submits that the effect of the new guideline is to render the old sentences (and indeed many others) manifestly excessive. The argument that it has that effect runs as follows. First, the change of approach to couriers, and especially to the lowest level of couriers, demonstrates, it is submitted, that the principle upon which such offenders have hitherto been sentenced was wrong and unfair; it is "fundamentally disproportionate". In other words, the new guideline shows that all sentences imposed on such offenders (from at any rate R v Aramah in 1982) can now be seen to have been manifestly excessive. Secondly, it is said that that is confirmed by the approach of this court to the standards of fair trial and consequent safety of conviction, as applied, for example, in R v Bentley [2001] 1 Cr App R 307. Thirdly, in the case of the last two applicants, whose applications have been brought in time, it is submitted that the sentencing process is not over until this court has dealt with their applications for leave to appeal and that for that reason additionally in their case the new guideline is applicable. Fourthly, in the case of the same two applicants, although they were sentenced before the new guideline was operative (and indeed before it was published), they were sentenced after the publication in March 2011 of the most recent Sentencing Council Consultation Paper. That had revealed the possibility that the eventual guideline might take the form which it eventually did (more or less) in relation to some couriers. Therefore, it is submitted, in their cases the sentencing court ought to have had regard additionally to that paper which again shows that the sentences which were imposed are manifestly excessive and fundamentally disproportionate. Fifthly, it is submitted that if the new guideline is not given this effect, there will ensue an arbitrary and unfair distinction between offenders who were sentenced just before and...
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