R v David Lewis and Others
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALLETT |
| Judgment Date | 01 June 2012 |
| Neutral Citation | [2012] EWCA Crim 1414 |
| Docket Number | No. 2012/01866/A7, 2012/01867/A7, 2012/0224/A8 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 June 2012 |
Attorney General's Reference No. 15, 16 & 17 of 2012
Under Section 36 of The Criminal Justice Act 1988
[2012] EWCA Crim 1414
Lady Justice Hallett DBE
Mr Justice Calvert Smith
Mr Justice Maddison
No. 2012/01866/A7, 2012/01867/A7, 2012/0224/A8
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London
WC2A 2LL
APPEARANCES :
Mr E Garnier QC (Solicitor General) and Miss S Whitehouse appeared to make the application
Mr W Walsh appeared on behalf of the Offender David Lewis
Miss K Brimelow QC and Mr M McDonald appeared on behalf of the Offender Everadus Wijtvliet
Mr J Vine appeared on behalf of the Offender Henrik Willem Vriezen
Friday 1 June 2012
Her Majesty's Solicitor General, Mr Edward Garnier QC, has placed before us three applications for leave to refer as unduly lenient sentences imposed in the Crown Court for drugs offences. On the same day, we heard a number of appeals and applications for leave to appeal against sentence also imposed for drugs offences. They each had in common the fact that sentence was passed after the Sentencing Council's new Definitive Guideline on Drugs Offences came into effect on 27 February 2012. Mr Garnier's principal submission is that the Definitive Guideline has been misunderstood and is at risk of being misapplied. He invited the court to take the opportunity to "dispel a few myths" about its impact on the level of sentences for drugs offences.
The most important "myth" that Mr Garnier wished to be dispelled is that it was the intention of the Sentencing Council to lower the level of sentences for drugs offences generally. Had that been their intention, it was not reflected in the press release which accompanied the publication of the Guideline. Dated 24 January 2012 it read:
"…. Under the new Guideline there are likely to be increased sentence lengths for those guilty of large-scale production offences and reduced sentence lengths for drug mules. Sentences for drug mules—who are usually vulnerable and exploited by organised criminals—will have a starting point of six years' imprisonment.
There will be no change in sentencing for possession or drug supply offences. Where an offender profits from selling drugs, a prison sentence can be expected. Street dealers who have a significant role in selling Class A drugs, particularly those who sell drugs for profit, can expect a custodial sentence with a starting point of four-and-a-half years. Sentences could go up to 16 years for a single incident depending on the quantity of drugs involved."
The Guideline also introduces a new aggravating factor to supply offences to ensure that where offenders are dealing to those under the age of 18 they are treated more severely:
"…. Deputy Chairman of the Sentencing Council, Lord Justice Hughes, said:
'Drug offending has to be taken seriously. Drug abuse underlies a huge volume of acquisitive and violent crime and dealing can blight communities. Offending and offenders vary widely so we have developed this Guideline to ensure there is effective guidance for sentencers and clear information for victims, witnesses and the public on how drug offenders are sentenced.
This Guideline reinforces current sentencing practice. Drug dealers can expect substantial jail sentences."
These comments were reinforced in a judgment which the Hughes LJ, Vice-President of the Court of Appeal Criminal Division, gave on behalf of the court in R v Boakye and Others [2012] EWCA Crim 838. He said:
"9. 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')."
Bearing those observations in mind and the fact that the Guideline is not a statute requiring strict statutory construction, we turn to consider its terms. Although we shall focus on the first category of importation of drugs which features in the applications by Mr Garnier, the Council has adopted a similar approach throughout the Guideline.
The Guideline sets out a series of eight steps for the sentencing process, not all of which will be necessary in every case but which should be followed sequentially. Step one is the determination of the offence category, to which there are two aspects: culpability and harm. Culpability is demonstrated by the offender's role. Harm, or rather the potential for harm, is measured by the weight or quantity of the drug concerned.
The culpability and harm categories are preceded by these words:
"In assessing culpability the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories the court should balance these characteristics to reach a fair assessment of the offender's culpability.
In assessing harm quantity is determined by the weight of the product. Purity is not taken into account at step 1 but is dealt with at step 2."
Category 1, for example, refers to an "indicative quantity" of 5 kilograms of heroin or cocaine; 10,000 tablets of ecstasy; 250,000 squares of LSD; 20 kilograms of amphetamine; 200 kilograms of cannabis; and 5 kilograms of ketamine. Where the operation "is on the most serious and commercial scale" involving a quantity of drugs significantly higher than category 1 "sentences of 20 years and above may be appropriate, depending on the role of the offender".
Thus, the weight or quantity of the drug remains at the heart of the sentencing process. However, a direct comparison between the new guidance and the old may be misleading. Under the previous regime, sentencing ranges for drugs offences were based on the weight of the drug at 100% purity. Under the new Guideline, the purity of the drug does not become relevant until step two, when low purity or high purity of the drug may be a mitigating or aggravating factor. This is a significant change and may have been the cause of some confusion for those who have not read the Guideline sufficiently closely.
There may also be a misunderstanding (amongst practitioners at least) as to how to categorise the role of an offender. The Council has not reallocated offenders into different categories. The essential nature of a drugs hierarchy remains the same even if the terminology has changed. The terminology of the hierarchy has varied over the years, for example there was a time when some judges divided offenders according to military ranks: generals, lieutenants and foot soldiers. The Council has chosen the categories of "leading", "significant" and "lesser" roles. This is not a change in substance.
Judges are well used to assessing the roles played by offenders and placing them in a hierarchy. The judge should consider the offender's role with particular care because his or her conclusion will have a significant bearing on the appropriate sentence. He or she is not bound by the submissions of the parties, even if they are agreed.
It will be a rare sentencing exercise in which every person in the chain of command in a drugs enterprise is before the court. Almost inevitably there will be people lower down or higher up in the chain absent from the dock. The fact that there may be a financier or someone senior to an organiser who remains at large does not mean that the organiser has not played a "leading" role. It may, on the particular facts, put the organiser somewhere in the middle of the "leading role" range, but not in another range all together.
The Council has provided a list of characteristics to guide the judge in his/her task. However, the list is not exhaustive and it is not necessary for an offender to possess every characteristic before he or she can be described as fulfilling any particular role. We detect a possible tendency (certainly on the part of practitioners) to focus on the "non-exhaustive" list of characteristics provided and to give them far too strict a meaning. The words chosen have a broad meaning and judges should be astute not to place offenders in a lower category than is appropriate.
The categories do not provide some kind of straightjacket into which every case must be squeezed. Few offences and few offenders will match exactly the categories provided. One offence or one offender may straddle a number of categories. There may be more than one offence involved in which the offender has played different roles. More than one drug may be involved. The quantity of drugs may be off the scale of the Guideline. The judge must do his or her best to reach a fair assessment of the overall offending, namely culpability and harm, before proceeding to the next stage (step two). The judge should declare their conclusions on step one in their sentencing remarks, for the benefit of the offender, those advising the offender, and this court.
At step two, having determined the offender's role and the category of harm, the judge should "use the corresponding starting point to reach a sentence within the category ranges" which follow. The starting point "applies to all offenders irrespective of plea or previous convictions". The judge should then factor in any aggravating or mitigating features and adjust the sentence within the range.
Again we emphasise, as the Council emphasises, that the list of aggravating and mitigating factors is non-exhaustive and in some cases "having considered...
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