R v Wijs and related appeals
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 20 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0520-1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 20 May 1998 |
| Docket Number | No. 97/7702/Z2, 97/0328/Z2 |
[1998] EWCA Crim J0520-1
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 Turner
and
Mr Justice Penry-Davey
No. 97/7702/Z2, 97/0328/Z2
97/0202/Y4, 97/0304/Y4 & 97/0362/Y4
MISS A BROWN appeared on behalf of THE APPELLANT WIJS
MR J MANNION appeared on behalf of THE APPELLANT RAE
MR M LEVETT appeared on behalf of THE APPELLANT DONALDSON
MR S BEVAN appeared on behalf of THE APPELLANT CHURCH
MR D HAROUNOFF appeared on behalf of THE APPELLANT HALLER
MR M BRYANT-HERON appeared on behalf of THE CROWN
Wednesday 20 May 1998
Amphetamine is a synthetic stimulant which, in powder or tablet form, falls within Part II of Schedule 2 to the Misuse of Drugs Act 1971 and is thus a Class B controlled drug. The present appeals have been listed and heard together in order that the court may consider and give guidance on the appropriate level of sentence on conviction of unlawfully importing amphetamine and unlawful possession of amphetamine with intent to supply.
The best known and most widely abused Class B drugs are herbal cannabis and cannabis resin. In R v Aramah (1982) 4 Cr App R(S) 407, as refined in ( R v Ronchetti unreported, 28 November 1997), this court gave guidance on the appropriate levels of sentence on conviction of unlawfully importing those drugs. Broadly summarised, and subject to all the qualifications contained in those judgments, the guidance was:
(1) The importation of very small amounts for personal use should be dealt with as if it were simple possession.
(2) Subject to (1), the importation of amounts up to about 20 kilogrammes should ordinarily attract sentences of between 18 months' and 3 years' imprisonment.
(3) The importation of medium quantities over 20 kilogrammes should ordinarily attract sentences of 3 to 6 years'.
(4) The importation of quantities above 100 kilogrammes should ordinarily attract sentences of 7 to 8 years'.
(5) The importation of 500 kilogrammes or more should ordinarily attract sentences of 10 years' or more.
As has been repeatedly emphasised, these are guidelines only: the appropriate sentence in any case will depend on a number of circumstances, including the defendant's plea (and, if the plea is one of guilty, the date at which it was tendered); the defendant's history of involvement in drug trafficking; his role in the importation; any help which he may have given to the authorities; and other relevant matters. The penalty for importing a controlled drug will in many cases be higher, and rarely lower, than for possession with intent to supply.
Although the section of the judgment in R v Aramah setting out the basis of these guidelines is headed "Class B Drugs, particularly Cannabis", it is plain that the court had herbal cannabis and cannabis resin, and by analogy (but see R v Ronchetti) cannabis oil, in mind. In R v Falshaw (1993) 14 Cr App R(S) 749 at page 750 -751, the court pointed out that no exact comparison could be made between cannabis and amphetamine, but in R v Aranguren (1994) 99 Cr App R 347, when the court substituted weight for market value as the preferred measure for calculating the relative significance of seizures of Class A drugs, it declined (at page 352) to give a guideline covering amphetamine.
There are two very obvious differences between cannabis and amphetamine:
(1) While market prices tend to fluctuate depending on the interplay of supply and demand, and there has been a sharp decline in the street value of amphetamine in the last two years or so, amphetamine has always, weight for weight, been vastly more valuable than cannabis.
(2) It has always been the practice to retail amphetamine to consumers in a highly adulterated form. There is again evidence, based on seizures in the last year or two, that when retailed to consumers powders or tablets containing amphetamine now have a higher concentration of the drug than was once generally the case. While goods seized at the points of importation may contain a high percentage of amphetamine, at a retail level the purity may well be no more than ( say) 10% to 12% or even less.
It follows from these facts that a trafficker in possession of a given quantity of amphetamine stands to earn very much larger sums than a trafficker in possession of the same weight of cannabis; that a relatively small weight of amphetamine of maximum purity will, when adulterated, convert into a very large number of individual doses; and that the weight of amphetamine which a user may hold for his own personal consumption is likely, in many cases, to be much smaller than the weight of cannabis held for personal consumption.
We are quite satisfied, for reasons clearly given in R v Aranguren, above, that with amphetamine levels of sentence should depend not on market value but, subject to all other considerations, on the quantity of the amphetamine in question calculated on the basis of 100% pure amphetamine base (i.e. the maximum theoretical purity of 73% amphetamine base in amphetamine sulphate, the remaining 27% being the sulphate). We are also satisfied, as was held in relation to Class A drugs in R v Martinez (1984) 6 Cr App R(S) 364, that we should not attempt to distinguish between different drugs included by Parliament in Class B on the basis that one such drug is more or less pernicious than another. The distinguishing features of amphetamine to which we have briefly drawn attention do, however, mean that guidelines relating to its importation insofar as they are determined by weight must differ materially from those pertaining to cannabis.
On conviction of importing amphetamine following a contested trial a custodial sentence will almost invariably be called for save in exceptional circumstances or where the quantity of the drug is so small as to be compatible only with personal consumption by the importer. The ordinary level of sentence on conviction following a contested trial (subject to all other considerations, and on quantities calculated on the basis of 100% pure amphetamine base) should be:
(1) Up to 500 grammes: up to 2 years' imprisonment.
(2) More than 500 grammes but less than 2.5 kilos: 2 —4 years'.
(3) More than 2.5 kilos but less than 10 kilos: 4 —7 years'.
(4) More than 10 but less than 15 kilos: 7 —10 years'.
(5) More than 15 kilos: upwards of 10 years', subject to the statutory maximum of 14 years'.
We have been referred to a number of reported cases. Some of these fall comfortably within the guidelines set out above: for example R v Fitzgerald (1994) 15 Cr App R(S) 236; R v Brougham [1996] 2 Cr App R(S) 88. Others do not, but in some of these (such as R v Coughlan (1995) 16 Cr App R(S) 519, where the defendant was at the centre of the conspiracy and the sentence exceeded the level now indicated, or R v Morley (1994) 15 Cr App R(S) 86, where the defendant was a courier who pleaded guilty to possession with intent of a quantity of amphetamine of 1% purity) there were special factors which readily explain the sentence passed. It is in any event the difficulty of reconciling certain of the authorities which in our view makes it desirable to give guidance on levels of sentence for these offences.
WIJS:
On 29 September 1997 in the Crown Court at Chelmsford the appellant Wijs, aged 26, pleaded guilty to 7 counts of an indictment. These charged him with unlawfully importing ecstasy tablets (counts 1 and 2); unlawfully importing amphetamine (count 3); unlawfully importing cannabis and cannabis resin (counts 4 and 5); and with obstructing a customs officer and impeding the detention of drugs (counts 6 and 9). On 31 October he was sentenced to a total of 71/2 years' imprisonment. This was made up by: concurrent sentences of 7 years' imprisonment of each of counts 1 and 2, concurrent sentences of 15 months', one month and 9 months' on counts 3, 4 and 5, and sentences of 6 months' on each of counts 6 and 9, concurrent with each other but consecutive to the other sentences. He appeals against his sentences by leave of the single judge. His complaint is directed primarily to the sentences of 7 years' imprisonment imposed on counts 1 and 2 concurrently.
On 12 July 1997 a customs officer stopped the appellant as, in company with his 17 year-old girlfriend, he disembarked from a ferry recently arrived from the Hook of Holland. The appellant told the officer that they were bound for London and intended to stay for 5 days. Their luggage was searched without result. The appellant was then taken to a private room for a search of his person and he produced a small...
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