Neutral Citation no. [2003] NICA 42	Ref:     	CAMF4028	
			
Judgment: approved by the Court for handing down	Delivered:	31/10/03	
(subject to editorial corrections)			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRLEAND

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REFERENCE BY HER MAJESTY’S ATTORNEY GENERAL FOR NORTHERN IRELAND (NO 11 OF 2003) (DESMOND VINCENT ROBINSON)
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Before: Carswell LCJ, Campbell LJ and Weir J

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CAMPBELL LJ

[1]	On 31 March 2003, following a trial in the Crown Court at Antrim, the offender was found guilty of possession of a Class A drug, namely Cocaine, with intent contrary to section 5(3) of the Misuse of Drugs Act 1971. On 9 June he was sentenced to 18 months imprisonment. The Attorney General sought leave to refer the sentence to this Court for review under section 36 of the Criminal Justice Act 1988 on the ground that it was unduly lenient. We gave leave and the hearing proceeded.

[2]	The facts as stated in the reference by the Attorney General are as follows:-

(a)	The offender was at the material time a lorry driver working for McNeilly Transport. He left Northern Ireland on 24 July 2002 to drive to the Leicester area returning on the morning of 27 July 2002.

(b)	He returned to his depot to leave off the trailer and then left the depot in the traction unit of the lorry to drive home at approximately 8 am. At approximately 8.35 am. he was stopped at a vehicle checkpoint at Greystone Road  and informed that his vehicle was going to be searched for drugs.

(c)	Sergeant McIlmail noticed a black box attached to the roof of the cab behind a spoiler. The offender explained that he kept cables and spare parts in it. He jumped up onto the vehicle and took cables out of the box.

(d)	He was requested to come down from the vehicle and jumped down and invited the sergeant to look at the contents of the box.

(e)	Constable Weir then jumped up onto the vehicle to inspect the box. He moved boxes and tools and discovered two gift wrapped parcels under a black plastic cover.

(f)	The gift parcels contained approximately 1.5 kilos of Cocaine with a street value of approximately £150,000.

[3]	The offender, through his solicitor, took issue only with paragraph (c) of this version of the facts where it is stated that the black box was attached to the roof by saying that the box was an integral part of the top of the cab.  If this was the case we do not consider this difference to be of any significance.

[4]	The aggravating factors contended for by the Attorney General are that quantity and value of the drugs is large; that the employer’s lorry was used for the purpose of transporting the drugs ; and the offender sought to hide them from police when stopped at the checkpoint. 

[5]	The offender did not accept the statement that he sought to hide the drugs from the police when he was stopped at the checkpoint and he said that he invited them to look in the black box.  

[6]	The mitigating factors suggested by the Attorney General are that the offender has no previous convictions for this type of offence although he has a record in relation to driving offences; and that as a result of his detection he has developed an adjustment disorder with prominent features of anxiety and depression.

[7]	Dr Ian Bownes, a Consultant Forensic Psychiatrist, has diagnosed the offender as suffering from an adjustment disorder as a direct consequence of his imprisonment for this offence.  Dr Bownes considers that with his personality the offender’s adjustment to the vicissitudes of prison life is likely to be poor and he would anticipate a consequent deepening of his state of mental ill health and the possibility that this could lead to the onset of a more serious psychiatric disorder.

[8]	The forensic scientist has reported that the combined weight of the three blocks of powder was 1.490 kg. A single block in one package was cocaine of 30% purity and the two blocks in the other package were cocaine of 37% purity. 

[9]	Hutton LCJ in R v Hogg [1994] NI 258 at 262 summarised the correct approach to sentencing in drugs cases, bearing in mind all the variants in individual cases.   With reference to offences of importation and supply he said -:

“1.	Importation of drugs on a large scale is the most serious offence in this area, and is invariably visited with a substantial custodial sentence. We respectfully agree with the guidelines set out by Lane CJ in R v Aramah (1982) 4 Cr App R  (S) 407.

2.	Supplying drugs is the next in descending order of gravity, with possession with intent to supply a short distance behind. In many cases there may be little distinction between them, for the charge may depend on the stage of the proceedings at which the defendant was apprehended. In all but exceptional cases they will attract an immediate custodial sentence, which may range from one of some months in the case of a small quantity of Class B drugs to one of four or five years or more in the case of supply of appreciable commercial quantities of Class A drugs. We do not find it possible to narrow the range more closely, for much will depend on the circumstances of the supply, its scale, frequency and duration, the sums of money involved and the defendant’s previous record, together with his or her individual circumstances.”

[10]	More recently in R v Murdock 2003 NICA 21 Carswell LCJ reviewing some of the principles said -:

(a)	The possession of Class A drugs with intent to supply should generally be visited with a heavier sentence than in the case of Class B drugs.

(b)	A wholesaler or warehouser of drugs will generally be less heavily sentenced than an importer and more heavily than a retailer or lesser supplier.  Much will depend on the circumstances of the case and general rules should be applied with caution.  Supplying will usually attract a heavier sentence than possession with intent to supply, but the line between the offences may be fine, for the charge may depend on the circumstances in which the offender was apprehended.

(c)	Where persons are caught with substantial quantities of drugs in their possession which are far beyond their own possible needs, a plea of guilty to possession with intent to supply, especially at a late stage, does not merit as much discount as might otherwise be afforded to them.

(d)	Guidelines are of use in maintaining a degree of consistency in sentencing, but they are not to be slavishly followed, since the sentencer in any given case has to determine what is appropriate for the individual case before the court.  Mitigating and aggravating factors in the particular case will have to be taken into account in determining the final disposition.  Reported previous decisions may provide a benchmark, but it should be observed that in some reported cases there may be unstated factors, eg co-operation with the police, which have influenced the length of sentence.  It should also be borne in mind that levels of sentence may move upwards, or downwards, depending on the prevalence and danger to the public of any type of offence.

(e)	The quantity of drugs involved in different cases is a relevant factor, but should not be used as a rigid guide to sentencing levels by way of an arithmetical scale based on weight or value.

(f)	As a general vade mecum for sentencers in this type of case we venture to repeat a passage from our judgment in R v Darragh and Boyd (2001, unreported):

“Guidelines, as their title indicates, are designed to give guidance to judges faced with the difficult and infinitely variable task of passing sentences.  As Lord Taylor of Gosforth CJ stressed, however, in R v Warren and Beeley [1996] 1 Cr App R  120 at 123, the criteria have been laid down for guidance only.  The figures which they contain reflect broadly the fact that in general persons caught dealing with substantial amounts of controlled drugs are guilty of more heinous offences than those concerned with small amounts.  They are, however, only a starting point, and the sentencer is free to depart from them in either direction.  They are of most assistance when the court is concerned with persons who have been trading in the substances, for in their case differences in amounts may be quite a valid guide to differences in guilt.  What a sentencer should aim to do is to fix upon the quality of the defendant’s act, which will depend on an amalgam of factors, the amount involved being only one.  Mitigating factors may then be taken into account, and the extent to which they can influence the sentence will depend on the nature of the case as well as the circumstances of the individual defendant.  As the judge properly remarked, the necessity to pass sentences which will deter those tempted to deal in drugs for profit may reduce the extent to which personal factors can be allowed to operate in mitigation.”

[11]	Mr Allister QC (who appeared with Mr Barrry Gibson for the offender) in accepting that the sentence appeared to be out of line with sentences for similar offences imposed in this jurisdiction went on to emphasise the mitigating factors. He referred to his client’s partner and young son having to move out of the family home for a time as a consequence of attacks that have been made on their home and car since this offence was made known. Mr Allister said that the offender spent three months in prison on remand and during this time he was in the prison hospital for two periods. While on bail he resumed work as a lorry driver.  There is nothing about his life style to suggest that he was engaged in the drug trade over a period of time and in the pre sentence report he is described as presenting a low risk to the public in the future. 

[12]	Applying the principles in Hogg and Murdock  to this case we have come to the conclusion that the sentence was outside any permissible bracket which could be regarded as proper and that it was unduly lenient. 

[13]	The proper sentence initially would have been one of 5 years and it would not have been appropriate to make a custody probation order under Article 24 of the Criminal Justice (Northern Ireland) Order 1996.  In our view the sentence of 5years should now be mitigated to allow for the fact that the offender has had to face the prospect of being sentenced twice over. We take account also of his medical condition and the additional burden that imprisonment has placed on him as a result of this. The sentence that we now impose is one of 3 years and 6 months.