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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Johnson, R v [2009] EWCA Crim 2745 (25 November 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/2745.html Cite as: [2009] EWCA Crim 2745, [2010] 2 Cr App R (S) 24, [2010] 2 Cr App Rep (S) 24

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Wednesday, 25th November 2009

1. MR JUSTICE LANGSTAFF: On 25th June the appellant was convicted of possessing ketamine with intent to supply before His Honour Judge Lee and a jury, in the Crown Court at Dorchester.
2. At the outset of the trial he had pleaded guilty to a count of simple possession, which had been for that purpose added to the indictment. It follows that the jury rejected his defence that he had the drugs for his personal use. He was sentenced by His Honour Judge Lee to a term of 18 months' imprisonment. Against that sentence he appeals by leave of the single judge.
3. It is argued on his behalf that the starting point was simply too high for this drug, as to sentences for supply of which there is very little authority. There is a good reason for that. It was not until the Misuse of Drugs Act 1971 Amendment Order of 2005, which came into force on 1st January 2006, that ketamine was classed as a Class C drug.
4. The reasons why it is a Class C drug and was reclassified upward so to be are not material to our consideration of this sentence because it was for Parliament to classify the drug and not for us. But it is worth observing that ketamine is an anaesthetic drug which was originally used for veterinary and occasionally dental purposes. It is a dissociative anaesthetic which has the effect of blocking signals to the conscious mind from other parts of the brain. That can cause a state of reduced bodily sensation; it may prompt hallucinations. It is those psychedelic properties to which its present popularity on the clubbing scene can be attributed. It is known as a drug associated with drug assisted sexual assault. It has dangers in that higher doses can render the taker paralysed. It can affect memory. The serious health effects are however amply demonstrated in the case of this appellant who is a self-confessed user of ketamine over some time. One effect is to shrink the bladder and the urinary tract. The effect is to lead to a vastly increased frequency and discomfort of urination to the extent that this appellant requires to relieve himself very often, as much as twice an hour.
5. The essential facts of the case are these. The police conducted a search under warrant of the appellant's home in Weymouth. They discovered 25 litre jerry cans which were partly filled with colourless liquid. They discovered drinks bottles also containing a colourless liquid. One way of transporting ketamine is to mix it in solvent, and then when needed to evaporate the solvent so as to leave the dry white pure powder. There were traces of dry white pure powder in the appellant's microwave. A further search discovered £785 worth of cash. When the liquid was analysed, it was found to contain 785 grams of ketamine at 86 per cent purity. That is equivalent to 612 grams of pure ketamine. That is sufficient, it is accepted, to make just over 2,600 deals. Such is the retail price of those deals that the highest achievable price on the street would come to a total of some £11,000. Although Mr Lyons who appeared before us as he did below was at pains to emphasise that the appellant has himself a substantial drug habit, we felt unable to accept that he was anything other than a significant retailer. He has, in our view, to be treated as that. It does not seem to us particularly helpful to analyse the precise amount that he would have retained for himself, as opposed to that which he would have sold on the streets.
6. The judge in sentencing said very little. He reflected the growing concern among drug agencies and health care professionals about the long-term effects of regular ketamine use and told the appellant that he was living proof of the danger of the drug. He took into account the health problems from which the appellant suffered. He imposed, without further reasoning, a sentence of 18 months' imprisonment. It may be that he had in mind a broad equivalence with cannabis, (a Class B but not a Class C drug) and was seeking to apply the guidelines in the Aramah case, which would suggest that for a retailer such as this, a sentence of between 1 to 4 years would be appropriate, with the top end of the bracket being used for the wholesaler and a lesser sentence for those who retail smaller amounts. It may be that he had in mind a broad equivalence with amphetamine, which again is a Class B drug, for which, again, the sentencing range might be thought to be similar.
7. But we have been very helpfully referred to such few cases as there have been which have had specific regard to this drug. Normally one would find a report which would look at the possession of this drug, among others of greater seriousness and from which it would be very difficult to extract anything helpful to act as a reliable precedent. However, we have been particularly helped by looking at the case of R v Yucel [2007] EWCA Crim 3122, in which this court had to consider a much larger quantity of ketamine, nearly 9 kilos of pure ketamine, with a street value of just over 20 times the value here, namely £250,000.
8. The sentence imposed by the court on a plea of guilty was one of 6 years' imprisonment, suggesting in the circumstances of that case a starting point for that quantity and for a significant wholesale dealer of seven-and-a-half years. That was reduced to 5 years' imprisonment. The case of R v Milan Kosanovic [2008] EWCA Crim 103 followed, Kosanovic having been one of the defendants involved in the case which Yucel was also indicted. His appeal came on separately. The court felt constrained by the success of the appeal in the case of Yucel to reduce the sentence which had been imposed upon Kosanovic for possession of 8.94 kilogrammes of pure ketamine to the value we have described. The sentence which had been imposed upon him, given his role in the events, was 4 years. That was reduced to 3 years. Thus, it would indicate that in the view of the court, a sentence of something of the region of four-and-a-half years would be appropriate for that quantity of ketamine, in the hands of someone who is plainly a more significant and serious dealer than was the defendant in this case.
9. It is, as it seems to us, very difficult to draw any particular help from examining specific quantities and carrying out any form of mathematical exercise by reference to those cases such as R v Aramah, which concern cannabis or those cases such as R v Wijs which concern amphetamine, not simply because they refer to Class B rather than Class C but because it is also far from clear what if any correspondence there is between particular values or particular weights of ketamine and those other drugs.
10. We, for our part, are not in any position nor do we wish to lay down any guidelines, though invited to do so. We say only this. The Sentencing Advisory Panel are considering guidelines in respect of the sentencing of drugs. We hope and indeed anticipate that in the near future they will give guidelines which will provide the guidance, which has hitherto been so thin, as almost to be lacking, for courts when they come to deal with cases which involve ketamine on its own.
11. We think that in the circumstances of this case, what we must do is have regard to those cases which we have mentioned as giving a broad indication of the level of sentence in a ketamine case such as this, and we have to ensure that the sentence here is consistent with, or at least not out of step with, the sentences imposed in the cases of Yucel and Kosanovic. The previous convictions of the appellant are lengthy. There were 12 offences committed on six occasions but only one drug offence amongst them. That was possession of methyldiethylamphetamine on 18th January 2000 where a community service order was imposed. There is therefore very little in his record to aggravate the circumstances of this particular case.
12. Taking all that into account, we have resolved that the sentence here began with too high a starting point. In our view, the correct sentence for this offence and its particular circumstances guided, as we have been, by Kosanovic and Yucel to the extent indicated, should have been one of 12 months. We do not criticise the trial judge in any way since he lacked the guidance that we have been able to obtain from counsel. The appeal will therefore be allowed to that extent. A sentence of 12 months' imprisonment is substituted for that of 18 months originally imposed.