Neutral Citation Number: [1998] EWCA Crim 1219
Case No. 97/6705/W3
IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London WC2

Date: Tuesday 7 April 1998

B e f o r e:

THE  LORD  CHIEF  JUSTICE  OF  ENGLAND
(Lord Bingham of Cornhill)
MR  JUSTICE  BRIAN  SMEDLEY
and
MR  JUSTICE  THOMAS

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R E G I N A

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NATHAN  TOLERA
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MR T VENTHAM appeared on behalf of THE APPLICANT

MR S COLLERY appeared on behalf of THE CROWN
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J U D G M E N T
THE LORD CHIEF JUSTICE:  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 in particular Attorney General's References Nos 3 and 4 of 1996 (R v Healy and Taylor) [1997] 1 Cr App R(S) 29, and R v Oakley [1998] 1 Cr App R(S) 100.  It is far from clear to us that there is, in truth, any real divergence between these cases, but we think it important that there should be no misunderstanding of the proper procedure.  In this case we grant leave to appeal against sentence and deal with the matter as an appeal.  
         The procedure raises no problem in a case where a defendant pleads not guilty and is convicted.  That leads to the facts being fully contested before the judge and he is then in a position, known to counsel, to make his own judgment on the facts of the case.  The position may however be different where the defendant pleads guilty.  In the ordinary way sentence will then be passed on the basis of the facts disclosed in the witness statements of the prosecution and the facts opened on behalf of the prosecution, which together we shall call the "Crown case", unless the plea is the subject of a written statement of the basis of the plea which the Crown accept.  The Crown should however consider such a written basis carefully, taking account of the position of any other relevant defendant and with a reasonable measure of scepticism.  If the defendant wishes to ask the court to pass sentence on any other basis than that disclosed in the Crown case, it is necessary for the defendant to make that quite clear.  If the Crown does not accept the defence account, and if the discrepancy between the two accounts is such as to have a potentially significant effect on the level of sentence, then consideration must be given to the holding of a Newton hearing to resolve the issue.  The initiative rests with the defence which is asking the court to sentence on a basis other than that disclosed by the Crown case.  
	    It often happens that when a defendant describes the facts of an offence to a probation officer for purposes of a pre‑sentence report, he gives an account which differs from that which emerges from the Crown case, usually by glossing over, omitting or misdescribing the more incriminating features of the offence.  While the sentencing judge will read this part of the pre‑sentence report, he will not in the ordinary way pay attention for purposes of sentence to any account of the crime given by the defendant to the probation officer where it conflicts with the Crown case.  If the defendant wants to rely on such an account by asking the court to treat it as the basis of sentence, it is necessary that the defendant should expressly draw the relevant paragraphs to the attention of the court and ask that it be treated as the basis of sentence.  It is very desirable that the prosecution should be forewarned of this request, even though the prosecution will now ordinarily see the pre‑sentence report.  The issue can then be resolved if necessary by calling evidence.  
         A different problem sometimes arises where the defendant, having pleaded guilty, advances an account of the offence which the prosecution does not, or feels it cannot, challenge, but which the court feels unable to accept, whether because it conflicts with the facts disclosed in the Crown case or because it is inherently incredible and defies common sense.  In this situation it is desirable that the court should make it clear that it does not accept the defence account and why.  There is an obvious risk of injustice if the defendant does not learn until sentence is passed that his version of the facts is rejected, because he cannot then seek to persuade the court to adopt a different view.  The court should therefore make its views known and, failing any other resolution, a hearing can be held and evidence called to resolve the matter.  That will ordinarily involve calling the defendant and the prosecutor should ask appropriate questions to test the defendant's evidence, adopting for this purpose the role of an amicus, exploring matters which the court wishes to be explored.  It is not generally desirable that the prosecutor, on the ground that he has no evidence to contradict that of the defendant, should simply fold his hands and leave the questioning to the judge.  
         In this particular case no complaint is made of the general procedure adopted by the judge, but two complaints are made about his conclusions.  The first complaint is that the judge was not entitled to take the view he did of the role of the appellant, in treating him as a distributor rather than a courier.  In our view this complaint is not made out.  The judge was fully entitled to infer that the appellant was not in the position of an ordinary courier acting as a mule to carry goods from one place to another.  For a period of some three days or so he was actively engaged in distributing heroin to the value of £10,000 in total, obtaining the goods from the wholesaler, passing them on to third parties, receiving cash from the third parties, and remitting that cash to the wholesaler for a daily fee.  The judge was quite right to distinguish that role from the role of a courier in the ordinary sense.  The judge was also entitled to bear in mind that, although the appellant had pleaded guilty and was entitled to credit for that, he was not entitled to the additional credit which he would have earned had he identified the wholesaler to the authorities.  
         The second complaint is that the judge was not entitled on the evidence before him to reject the appellant's claim that he was subject to a degree of compulsion falling short of duress.  There appears to us to be much more substance in this complaint and in viewing it our attention has been drawn to R v Kerrigan (1993) 14 Cr App R(S) 179, which makes plain that there is an onus on the prosecution to rebut an explanation of this kind.  It has to be borne in mind in this case that the appellant had apparently undergone a successful detoxification process at very considerable expense and had thereafter apparently remained drug free, and did not appear to be participating in the supply of drugs in order to finance a personal addiction.  His account of the matter was to some extent corroborated by the complete absence of the paraphernalia ordinarily associated with the supply of drugs.  It is true that he failed to answer questions in interview and was unwilling to name his associates, but these facts of themselves do not in our view displace a degree of probability attaching to his account and certainly do not prove the contrary.  
         In passing the sentence which he did the judge relied, as already mentioned, on R v Jones (supra), where a sentence of four‑and- a‑half years' was upheld on a plea of guilty to the possession of heroin and crack cocaine with intent to supply.  The quantities in that case were significantly smaller, although the period of involvement was somewhat greater, and the defendant was found in possession of drug‑dealing paraphernalia.  Although there are factual differences between this case and that we should not have been willing to disturb the judge's finding had we been satisfied that he was entitled to reject the suggestion of the appellant that he was subject to some degree of compulsion.  For reasons already given, however, we do not think the judge was so entitled and feel that this must be reflected in some reduction of the sentence.  For that reason we consider that the overall sentence should be reduced from five years' to four.  
         The appellant has an additional complaint about the deportation recommendation made against him.  The appellant came to this country from Ethiopia with his mother at the age of 12.  He is now aged 22.  His mother has been granted British nationality as a political refugee and he has indefinite leave to stay in this country.  He has never returned to Ethiopia, and it does not appear that he has family or friends in that country.  It is pointed out that he would be in great difficulty establishing himself in a country from which he has been absent so long and that the impact on his family would be extreme.  It is urged on his behalf that his continued presence would not be a threat to this country.  He has a minor criminal record, but only one very minor involvement in drugs, leading to a caution for the possession of cannabis and has never previously been sent to prison.  In the first instance the prosecution did not initiate the service of forms with a view to a recommendation for deportation and this was only done at the judge's instigation.  In all the circumstances we do not consider that this is an appropriate case for such a recommendation and we accordingly quash that part of the judge's sentence.  
         In the upshot therefore the sentence is reduced from five years' to four; the recommendation for deportation is quashed, and to that extent this appeal is allowed.