R v Tolera
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 07 April 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0407-17 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 97/6705/W3 |
| Date | 07 April 1998 |
[1998] EWCA Crim J0407-17
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
The Lord Chief Justice of England
(Lord Bingham of Cornhill)
Mr Justice Brian Smedley
and
Mr Justice Thomas
No. 97/6705/W3
MR T VENTHAM appeared on behalf of THE APPLICANT
MR S COLLERY appeared on behalf of THE CROWN
Tuesday 7 April 1998
On 7 August 1997, in the Crown Court at Snaresbrook, before His Honour Judge Samuels QC, this applicant pleaded guilty and on 12 September, following a Newton hearing, he was sentenced to five years' imprisonment for possession of heroin with intent to supply. He was also recommended for deportation and a forfeiture order was made. He now renews his application for leave to appeal against sentence following refusal by the single judge.
The matter involves a question of some significance: the procedure to be adopted where there may be a discrepancy between the basis upon which a defendant pleads guilty and the case presented by the Crown.
The facts here are these. On 31 October 1996 a mini cab driver was called to a public house in Highbury where it collected the applicant and two other men. The applicant sat in the front seat and asked to go to Stapleton Hall Road. The driver took them to the address and the applicant went into a block of flats, returning after about 20 minutes. He then asked to be taken to an address in Dalston. During this journey the cab passed a police van and the applicant slumped down in his seat. The officers in the police van noticed this and decided to stop the cab. As they approached the cab the applicant appeared to place something inside his trousers. He was asked to get out of the cab and hesitantly did so. He shuffled from foot to foot and was fiddling with his waistband. His eyes appeared to the officers to be glazed and they thought that he might be under the influence of drugs. They asked if he had anything on him which he should not have and he did not reply. He was searched and a bag was found under his waistband. He was asked what it was and made no reply. When asked if it was his he said that he had found it. He was then asked if the bag contained drugs and said, "No comment. I want a solicitor". He was then arrested. The bag was examined and found to contain four separate bags of heroin, totalling 55.8 grammes of heroin of 51% purity (the equivalent of 28.4 grammes at 100% purity). The applicant was asked his address and gave that of his mother. His mother's address was visited and she said that he had not lived there for several months. He then gave the address of his cousin who was also visited and said that the applicant did not live there. A key fob was found in his possession and that was found to relate to a flat at Stapleton Hall Road, the address given by the cab driver as that to which he had taken the applicant. The flat was searched and a bag containing £1,500 in bundles of £100 was found. The applicant was interviewed and made no comment to all questions put to him.
In the pre-sentence report the applicant was recorded as having said that he had been placed under a threat of violence by persons to whom he owed money in order to act as a courier for the drugs. He said that he had supplied drugs to others at their behest and had received money which he had passed on to those persons, but that he had not been dealing in drugs.
When the matter came before the court on the applicant's plea of guilty the judge did not accept this account. Defence counsel submitted that a Newton hearing was not necessary because there was no dispute between the prosecution and the defence on the facts of the case. However, the judge did wish there to be a hearing. The applicant gave evidence consistent with the account in the report, and the defence then called the officer in the case who described the circumstances as known to him.
When he passed sentence, the judge said that he declined to treat the applicant as a mere courier of drugs. In his judgment the proper approach was to treat the applicant fairly and squarely as a distributor of drugs for those who were engaged in a substantial way in dealing in heroin. He relied on R v Jones [1996] 2 Cr App R(S) 134. He then summarised the evidence given by the applicant of his involvement to the effect that he had a debt to drug wholesalers of £680 which he had sought to work off by supplying heroin for a nominal fee of £100 a day reduced from his debt. The judge pointed out that on the applicant's own admission he had distributed heroin over a period of three days with a street value in the region of £10,000. The judge acknowledged that the applicant had pleaded guilty and gave credit for that, but held that dealing in drugs at this level should inevitably attract a lengthy custodial sentence which would deter others from behaving in the same way. The judge rejected the applicant's contention, elaborated in his oral evidence and probed in cross-examination, that he was under a significant degree of compulsion to act as he did, and he referred to the disclaimer of a defence of duress made by the applicant's counsel.
There was considerable debate before the learned judge about the proper procedure to be adopted and it has been suggested to us that there is a difference of approach to matters of this kind in various authorities, including...
To continue reading
Request your trial
-
James Philip Daniel Cairns v The Queen
...in writing, first with the prosecution and then with the court. 5 The proper approach of the prosecution to bases of plea was considered in R v Tolera [1999] 1 Cr App R 29 and is now set out in the Attorney General's Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sen......
-
R v Knaggs (Russell)
...statements, there is no warrant for holding him to admissions to be inferred from his earlier plea of guilty. 23 The Crown also relied upon R v Tolera [1991] 1 Cr App R 29 in which this court ruled that where a defendant's account, as disclosed to a probation officer for the purposes of a p......
-
R v Patricia Jackson Christopher and Michael Markham; R v J (Patricia), M (Christopher Michael)
...sentence on the basis of wilful ill-treatment, without following the clear procedures set out in Newton and subsequent cases, particularly R v Tolera [1999] 1 Cr App R 29 in which Lord Bingham said the Court should make it clear that he did not accept the defence account and why. There is a......
-
R v Louisa Anne Robinson, Laura Wynne
...fact coerced to bring the cocaine back for others, notwithstanding the fact that the defence of duress failed." 10 The cases of R v Newton, R v Tolera, R v Myers and R v Kesler (all referred to in Archbold at paragraphs 5–18 and 5–19) set out the appropriate procedures when there is a relev......
-
Cases
...IAll ER160230R vThamesMC,ex p Ramadan [1999] ICrApp R386 412R vThamesMCand HMCustoms,ex pHormoz(1999) 163 JP 19 290R vTolera[1999] 1 Cr App R29 227R vVgunzaUDangaYala[1999] ICr AppR1 547R v W (John) [1998] 2 Cr App R289123R vWarleyJJ, ex pDPP(1999) 1 Cr App R(5) 156 177 .R vWarren(1998) RTR......
-
Cases
...IAll ER160230R vThamesMC,ex p Ramadan [1999] ICrApp R386 412R vThamesMCand HMCustoms,ex pHormoz(1999) 163 JP 19 290R vTolera[1999] 1 Cr App R29 227R vVgunzaUDangaYala[1999] ICr AppR1 547R v W (John) [1998] 2 Cr App R289123R vWarleyJJ, ex pDPP(1999) 1 Cr App R(5) 156 177 .R vWarren(1998) RTR......