Imprisonment – Appeal against sentence – Defendant and deceased being very close friends – Defendant and deceased taking Class A drug PMA when believing it to be MDMA

R v Harrod: Court of Appeal, Criminal Division: 25 September 2013

The defendant and the deceased, AM, had been very close friends for a long time. Once a month, they would spend time with each other watching sports and would also take drugs during that time. The responsibility of buying the drugs would alternate between the defendant and AM but they would buy the drugs for both their consumption. In April 2013, at the relevant time, it was the defendant’s turn to purchase the drugs. The defendant had intended on purchasing MDMA and had thought that he had purchased MDMA.

However, unbeknown to the defendant and AM, what had actually been purchased was a more toxic drug, PMA. Both the defendant and AM suffered adverse effects from taking PMA. AM’s reaction had been so severe that he stopped breathing. As soon as the defendant realised that AM was having difficulties the defendant tried to resuscitate AM. The defendant also telephoned the ambulance service and when paramedics arrived he explained to them exactly what AM and he had taken. Paramedics were unable to save AM. Police were involved and the defendant admitted his role.

He was subsequently charged with one count of supplying a controlled drug of Class A to another contrary to section 4(3)(a) of the Misuse of Drugs Act 1971 (the offence). The defendant pleaded guilty to the offence at an early opportunity. At sentencing, the judge had a large number of references for the defendant. There was also a letter from the father of AM. That letter stated, amongst other things, that: (i) there was no excuse for AM’s death but he did not hold the defendant accountable in any way; (ii) the defendant had suffered greatly since that fateful day and would continue to suffer; and (iii) he hoped that the court would be merciful toward the defendant. A pre-sentence report had been prepared for the purposes of the sentencing hearing and it stated, amongst other things, that there was a very little chance of the defendant re-offending. The sentence was considered within category four of the relevant sentencing guidelines. The defendant was sentenced to nine months’ imprisonment. He appealed against sentence.

He contended that the sentence imposed was manifestly excessive or wrong in principle considering the circumstances of the case. The appeal would be allowed.

It was an established principle in law that offences of so-called social supply of Class A drugs were not to be treated as a matter of course as being no more serious than cases of simple possession. It was another established principle in law that victim impact statements and family impact statements ought to be taken into consideration in criminal cases but could not affect the sentence given by a judge.

The case had been a tragic one. The judge had been correct to categorise the offence as within category four of the relevant sentencing guidelines which provided a sentencing range of a high-level community order to three years’ imprisonment, with a starting point for sentence of one-and-a-half years’ imprisonment. The mitigating features of the offence had been the defendant’s remorse and the fact that the defendant had been of previous good character. The previous good character had not simply been of the kind where he had had no previous convictions but he had a positively good character. Leaving aside the death of AM, the offence would have attracted a sentence at the bottom end of the range. However, that would ignore the death which had not been intended or anticipated and had been greatly regretted. The death was a significant aggravating feature.

That, however, was somewhat moderated by the effect it, the death, had had on the defendant. It appeared that the judge had taken a starting point of 15 months before discount. Considering the exceptional circumstances of the case, the starting point should have been lower. The appropriate starting point before discount would have been nine months’ imprisonment. That would be reduced to six months to reflect the early guilty plea. The judge had not erred in his discretion not to suspend the sentence.

The sentence of nine months’ imprisonment would be quashed and substituted with a sentence of six months’ imprisonment.

R v Wolfe [2012] 1 Cr App Rep (S) 569 applied; R v Perkins [2013] All ER (D) 313 (Mar) applied; R v Denslow [1998] Crim LR 566 considered.

John Morgans (instructed by Fosters Solicitors, Norwich) for the defendant. Simon Heptonstall (instructed by the Crown Prosecution Service, Appeals Unit) for the Crown.