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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 >> Hussain, R v [2012] EWCA Crim 3039 (7 December 2012) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2012/3039.html Cite as: [2012] EWCA Crim 3039

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Friday, 7 December 2012

1. LORD JUSTICE PITCHFORD: My Lord, HHJ Gilbert, will give the judgment of the court.
2. HIS HONOUR JUDGE GILBERT: This is an application for leave to appeal the sentences passed by Mr Recorder Nicklin at Snaresbrook Crown Court as unlawful in respect of the sentences passed for the two offences of possession with intent to supply class A drugs, those being sentences of 33 months and 33 months concurrent. We therefore grant leave to appeal.
3. The brief history is this. On 30 May 2012 at Stratford Magistrates' Court, the appellant was convicted of possession with intent to supply cocaine and possession with intent to supply heroin. On 20 June 2012, he was committed to the Snaresbrook Crown Court for sentence under Schedule 2, paragraphs 18(10) and 18(11) of the Criminal Justice and Immigration Act 2008 as he was at the time of conviction subject to a Youth Rehabilitation Order made on 10 April 2012 for an offence of violent disorder, which had been passed upon him at the Snaresbrook Crown Court.
4. On 29 June in the Crown Court at Snaresbrook the appellant was sentenced by Mr Recorder Nicklin to 33 months and 33 months concurrent in a Young Offender Institution for two offences of possession of class A drugs with intent to supply, and to 6 months concurrent in a Young Offender Institution for the offence of violent disorder, for which he had been subject to the Youth Rehabilitation Order of which he had originally been convicted by a jury at Snaresbrook on 21 October of last year, that being 4 days after the drugs offences were committed.
5. The facts of the two drugs offences may be stated very briefly. On 17 October 2011 a school teacher telephoned the police to report that she had observed a youth dealing drugs in Underwood Road in London, E1. She then saw drugs hidden underneath some trees near a bush. Police attended and arrested the appellant, who matched the description given to them by the teacher. The police recovered a cigarette box, the contents of which were analysed and found to contain 24 red and white packages, containing crack cocaine of a purity between 5 and 25 per cent, and nine blue and white packages, containing heroin with a purity of between 15 to 35 per cent. The appellant's fingerprints were found on the cigarette box.
6. In his grounds of appeal, counsel for the appellant, Mr Richardson, contends that the sentences for the drugs offences were manifestly excessive as the appellant was 17 years of age when the offences were committed, although 18 when convicted, and therefore he should have been sentenced to a maximum sentence of 2 years in a Young Offender Institution, taking into account that the maximum which the Youth Court could have passed was a Detention and Training Order for 24 months.
7. Save to say that 2 years in a Young Offender Institution was certainly not manifestly excessive for these drugs offences following conviction, notwithstanding the mitigation available to the appellant, we do not need to consider these grounds of appeal as the sentences for the drugs offences were unlawful.
8. By paragraph 19(6) of Schedule 2 of the Criminal Justice and Immigration Act 2008, which is set out in the 2013 edition of Archbold at chapter 5, paragraph 391, page 692, if an offender is brought or appears before the Crown Court by virtue of paragraph 18(11), as the appellant was, the Crown Court's powers are limited to dealing with him for the further offence or offences, that is to say the drugs offences, in any way in which the convicting court (that is the Stratford Magistrates' Court) could have dealt with him for the offences. Accordingly, the maximum sentences for those drugs offences was 6 months and 6 months consecutive in a Young Offender Institution.
9. Therefore we quash the sentences of 33 months and 33 months, and in their place we pass sentences of 6 months and 6 months in a Young Offender Institution, consecutive to each other for the two drugs offences, which in no way could be considered manifestly excessive.
10. With regard to the offence of violent disorder, by paragraph 19(3) of the Criminal Justice and Immigration Act 2008, as the Crown Court revoked the rehabilitation order, it may deal with the offender for the offence in respect of which the order is made in any way in which it could have dealt with the offender for that offence had he been before that court to be dealt with for the offence.
11. Bearing in mind that the sentences for the two drugs offences are 6 months and 6 months in a Young Offender Institution consecutive, the maximum which the Magistrates' Court could have passed upon him, we have to consider whether as a matter of law the sentence of 6 months detention in a Young Offender Institution for the offence of violent disorder must be concurrent so as to preserve the maximum 12 months, or it may be consecutive.
12. The point was dealt with in this court in the case of Nicholas Whitlock [1992] 13 Cr App R (S) 157, and it was clear in that authority, which we need not recite as it has not been contended to the contrary on behalf of the appellant, that it was open to the court when sentencing for breach of a probation order to make the sentence consecutive to any sentence where the maximum had already been allotted, so to speak, by the magistrates to the subsequent offences.
13. The sentence for the offence of violent disorder may therefore be consecutive to the other sentences. Whilst it is correct that the learned Recorder revoked the YRO and sentenced the appellant to 6 months detention in a Young Offender Institution concurrently, he did so saying that ordinarily that sentence would be ordered to be served consecutively to the drugs sentences because the offence had been committed in a separate incident. But, having regard to totality, and that he did not wish to increase the sentence beyond 33 months, he would order that the sentence of 6 months be served concurrently with the 33 months.
14. In our judgment, because we are bound by the provisions of Schedule 2 of paragraph 18 of the Criminal Justice and Immigration Act to reduce the sentences for the drugs offences to a total of 12 months in a Young Offender Institution, we consider it right to order the sentence for the violent disorder offence to be served consecutively to the 12 months for the drugs offences, having regard to the fact it relates to an offence which was totally separate from the drugs offence and totality therefore is not in issue.
15. In the result, the sentences which we pass are 12 months detention in a Young Offender Institution for the drugs offences, with 6 months detention consecutive for the violent disorder. The total which the appellant must serve is 9 months, less any days served to date. The other orders for forfeiture and destruction will stand.
16. LORD JUSTICE PITCHFORD: Mr Richardson, as we understand it, there were no days on remand that needed to be taken into account because he was committed on bail, was he not?
17. MR RICHARDSON: My Lord, that is correct, yes.
18. LORD JUSTICE PITCHFORD: Very well. Thank you very much.