R v SLS 2012 EWCA Crim 2158 (Drugs guidelines)

R v SLS 2012 EWCA Crim 2158 (Drugs guidelines)

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Issue – Does taking drugs into prison come within the drugs guidelines?

Facts – The Appellant was 17 and, shortly after being in an abusive relationship with a man, she started another relationship with a man who was in prison. He was ‘more mature and experienced’ than her and put pressure on her, which ‘it was difficult for her to resist’ to bring 21.1 grams of cannabis into prison for him.

By the time that she was sentenced, she was 18. She pleaded guilty (seemingly at the earliest opportunity) and received full credit.

She was actually charged with two offences; firstly taking a prohibited item (cannabis) into prison (contrary to s40B Prisons Act 1952) and secondly possession of cannabis with intent to supply. It seems that this was the same cannabis.

She was sentenced to 6 months for the Prisons Act offence with no separate penalty for the cannabis offence. The maximum sentence for the first offence was 10 years, for the second : 14 years.

The appeal was based on the fact that the Sentencing Guidelines indicated that the categorisation was a Lesser Role and Category 4 offence, the appropriate starting point was therefore a low level Community Order.

Conclusion – The Court of Appeal dismissed the appeal, stating that whilst ‘there was very substantial mitigation’ they had to dismiss the appeal.

How did that tie in with the Sentencing Guidelines?

para 12 “We do not accept that the guidelines cover the offence for which the appellant was sentenced, that of taking a prohibited substance into a prison. They cannot be extended, having regard to decisions of the court in this area, to cover situations such as the present. A recent decision of this court is Attorney General’s Reference No 34 of 2011 [2012] 1 Cr App R (S) 49 , the Lord Chief Justice, Lord Judge, presiding. The circumstances were different in that the defendant in that case had numerous previous convictions and had served custodial sentences. The court substituted a sentence of four years’ imprisonment for the 12 months imposed by the judge. The drugs in that case included a Class A drug by way of 29.1 grams of heroin.”

So, in essence, because Ms S was charged and pleaded guilty to the different offence, a custodial sentence was inevitable. The implication was however that, had she been charged with just Count 2, the same conclusions would apply as the Guidelines would not apply.

Comments – Is the Court of Appeal right to say that this isn’t covered by the Guidelines?

Whilst it is strictly true that it did not apply to Count 1, the offending is the same. To the extent that there is any difference, Count 1 has a lower maximum sentence than Count 2 and therefore, a lower sentence would be appropriate.

But, notwithstanding that, do the guidelines apply to this sort of offending? We would suggest that, contrary to what the Court of Appeal seem to be suggesting, the guidelines clearly do.

Firstly. From the introduction to the guidelines, the first words under the heading ‘Applicability of Guideline’ –  “In accordance with section 120 of the Coroners and Justice Act 2009, the Sentencing Council issues this definitive guideline. It applies to all offenders aged 18 and older, who are sentenced on or after 27 February 2012, regardless of the date of the offence.”

More clearly, from page 10 “Where the offence is street dealing or supply of drugs in prison by a prison employee, the quantity of the product is less indicative of the harm caused and therefore the starting point is not based on quantity.”. This clearly indicates that taking drugs into prison by someone working there is covered.

If there were any doubt, this would be dispelled by page 11 (dealing with supply offences):

“SIGNIFICANT role: [includes] • supply, other than by a person in a position of responsibility, to a prisoner for gain without coercion.”

This clearly indicates that the guidelines cover exactly this type of offending.

But what about the case cited? Well. Judgment was given on 15th June 2011, not only before the implementation of the guidelines, but before the consultation on the draft guidelines was published. To that extent, the guidelines supersedes the judgment referred to.

The starting point on the guidelines (before the guilty plea) was a low level Community Order. The offence in Count 1 is deemed by Parliament to be less serious, so should have attracted a lower sentence than the guidelines, not a higher. The reasons given by the Court for concluding that the guidelines were not applicable are very unconvincing and, we would suggest, wrong.

Conclusion

You could say, what is the point of having sentencing guidelines if you are going to ignore them when you feel like it? The Guidelines clearly are meant to cover an offence such as this and should be followed or, if the Court feels that the Guidelines are wrong, should say so in clear terms, rather than fudging the issue.

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Dan is a barrister at 2 Dr. Johnson’s Buildings practising in crime.

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