R v Robert Healey and Others
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 09 May 2012 |
| Neutral Citation | [2012] EWCA Crim 1005 |
| Docket Number | No: 2012/1374/A7, 2012/1407/A1, 2012/1408/A2, 2012/1409/A4 & 2012/1925/A2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 May 2012 |
[2012] EWCA Crim 1005
The Vice President
(Lord Justice Hughes)
Mr Justice Cooke
Mr Justice Burnett
No: 2012/1374/A7, 2012/1407/A1, 2012/1408/A2, 2012/1409/A4 & 2012/1925/A2
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2(A 2LL
Mr R Barradell appeared on behalf of Healey
Miss J Seaborne (Solicitor Advocate) appeared on behalf of Taylor and McGregor
Mr G Wyatt appeared on behalf of Brearley
Mr I West appeared on behalf of Bolton
Mr L Mably appeared on behalf of the Crown
These five defendants were all sentenced on the same occasion in the Crown Court at Sheffield for offences of cultivating cannabis. Their cases are entirely separate, but it has been convenient to hear them here one after the other in the same court in much the same way as it was obviously convenient in the court below. That is especially so since the judge sentenced them together and offered some generalised remarks about the basis on which he approached such cases.
Amongst those generalised remarks, the judge referred (correctly) to the frequency with which such cases were being encountered currently in Sheffield. He referred to the impact on the neighbourhoods in which they occurred. He referred to the decision of this court in R v Auton [2011] EWCA Crim. 76, [2011] 2 Cr.App.R (S) 75. Having done so, he said this:
"If it is not possible to continue passing immediate sentences of imprisonment in Auton 1 type cases under the [Sentencing Council] guideline, then I would have no hesitation in saying that in those cases to follow the guideline would not be in the interests of justice and decline to follow it."
He was referring to the then recently published Sentencing Council definitive guideline on drug offences which was published in February 2012 and was expressed to have effect from 27th February 2012 onwards.
We are obliged to say that the approach encapsulated in the last brief citation of the judge's remarks is wrong.
There are inevitably bound to be different views from time to time about the general level of sentencing. In some fields, and drugs offending is one of them, there is a level of public debate at least about parts of it. That may or it may not be one of the reasons why Parliament elected to create the Sentencing Council as an independent body to take an overview of sentencing and to publish guidelines. At all events Parliament did so. The Sentencing Council receives a very wide range of information, statistical data, research and opinion, both lay and professional. The collection of information available to it is far wider than the members of this court, individually or collectively, or individual sentencers, can hope to have. The Council also engages in a comprehensive consultation programme before it publishes any guideline, frequently with the publication of one, or sometimes a succession, of drafts for discussion. That process frequently involves - and it did in this case - extensive testing of commonly encountered scenarios upon experienced sentencers, namely Crown Court judges and district judges.
There is deliberately built in to the guidelines issued by the Sentencing Council a good deal of flexibility, as we shall in a moment demonstrate. The flexibility available to Crown Court judges is appreciable. It does not, however, extend to deliberately disregarding the guidelines, not on the grounds that the case has particular facts which warrant distinguishing it from the general level, but because the judge happens to take a different view about where the general level ought to be. The latter approach is demonstrably unlawful. It would remove all point from the issuing of any guidelines at all but such guidelines are required by the Coroners and Justice Act 2009. It would also, for that matter, equally rob of any point guidelines contained in a decision of this court. Indeed, such approach amounts to frank disobedience of the statute. That provides in section 125(1) of the Coroners and Justice Act 2009 that the court:
"… must follow … any sentencing guidelines which are relevant to the offender's case … unless satisfied that it would be contrary to the interests of justice to do so."
In the end, that kind of approach, if adopted, would also be contrary to the rule of law to which all judges are committed. Very few judges are fortunate enough to go through life without encountering rare occasions when they would prefer the law to be otherwise to that which it is. The judge's duty is nevertheless to apply it, whether at first instance or in this court, just as it is the duty of the citizen to obey the law whether he happens to agree with it or not.
This court's decision in Auton was explicitly delivered in anticipation that the more general factors affecting drugs sentencing were to be addressed by the statutory body responsible, that is to say the Sentencing Council. The decision in Auton contained this observation at paragraph 13:
"We are aware that the Sentencing Council has before it the task of framing guidelines for a wide range of drug offences. What we say by way of assistance to judges for the present must necessarily be subject to any more general guidelines thus prepared."
For that additional reason it was simply not open to the judge to announce that he preferred the earlier and limited analysis of the level of sentencing which had been given in Auton to the definitive guidelines published by the Sentencing Council. One of the principal purposes of the Sentencing Council and of the guidelines that it creates is to avoid the necessity for repeated reference back in Crown Courts, Magistrates' Courts or here to previous decisions whether they are single instances or, for that matter, previously delivered guideline judgments.
There are in fact some, but limited, differences between the levels of sentencing contemplated at the time of Auton for offence of cultivation of cannabis and the levels of sentences contemplated by the definitive guideline. The sentencer's job is to read the guidelines for what they are. The differences however are not nearly as large as the arguments before the judge seem to have contended.
We recognise that the preparation of guidelines which are designed to assist in advance the whole range of drugs sentencing, if they are to be put in a reasonably condensed form, is a formidable task for those who undertake it. We also recognise that the concentrated form which such guidelines necessarily take requires reading in a manner which is different to reading a narrative judgment of this court given upon one or a few cases on known factual bases. The process is unavoidably different.
The format which is adopted by the Sentencing Council in producing its guidelines is to present the broad categories of offence frequently encountered pictorially in boxes. That is perhaps convenient, especially since it is necessary to condense the presentation as much as possible and to avoid discursive narrative on so wide a range of offending. It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one of the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations. We wholeheartedly endorse the approach of Mr Wyatt, counsel for one of these defendants (Brearley), who asked us to find that a particular case was to be located on examination somewhere between two of the pictorial boxes.
In these guidelines, as in almost all such, there is a recognition that the two principal factors which affect sentencing for crime can broadly be collected together as, first, the harm the offence does, and secondly, the culpability of the offender. Those two root factors are often linked but not always. In some other contexts from that which we are now considering, such as for example offences of impromptu violence or offences which are committed carelessly, the two factors may not march together. In the context of offences which involve a considerable degree of deliberation and planning, such as will normally be the case for the production of drugs, they generally do march broadly together and certainly the one is likely to colour the other. Quantity, which is a broad appreciation of harm, may well colour participation, which is a broad appreciation of culpability, and vice versa. What we have just said about sliding scales applies equally to both elements, both to culpability and to harm. In neither case do the boxes have hard edges.
In these drug guidelines the broad indicator of harm in most cases, not all but including the cultivation of cannabis, is quantity. As this court made clear recently in R v Boakye [2012] EWCA Crim 838, the quantities which appear in the sentencing guideline pictorial boxes as broad indicators of harm are neither fixed points nor are they thresholds. They are, as the heading to the relevant column says, "indicative" quantities designed to enable the experienced judge to put the case into the right context on the sliding scale. In the particular context of the production of drugs with which we are today concerned, they are indicators of output or potential output as the preamble to the relevant page (18) explicitly says. In production cases it is the output or the potential output which counts. The...
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