Halpin [2019] EWCA Crim 892

**Halpin [2019] EWCA Crim 892** was an appeal against sentence heard in the Court of Appeal (Criminal Division) before the Lord Chief Justice, Mr Justice Spencer and Sir Brian Keith, which allowed the appeal in part solely to correct an arithmetical error in the discount given for guilty pleas.

Mr Halpin pleaded guilty at Exeter Crown Court on 15 October 2018 to possession of criminal property contrary to section 329(1)(c) of the Proceeds of Crime Act 2002 (count 1) and possession of a psychoactive substance with intent to supply contrary to sections 7 and 10(1) of the Psychoactive Substances Act 2016 (count 2). He was sentenced by the judge to twelve months’ imprisonment on each count, concurrent, suspended for eighteen months. The single judge granted leave to appeal on the ground relating to count 1 only.

On 2 September 2017, security staff at the Lockdown Festival at Powderham Castle in Dorset detained Mr Halpin and found canisters of nitrous oxide and cash on him. He was required to leave the festival grounds. That evening the same member of staff saw him coming out of a tent and detained him again. A search of a bag belonging to him which had been in the tent revealed a large number of canisters of nitrous oxide. Further canisters were found in his car the following day. The total number of canisters recovered was 1,709, which formed the basis of count 2. A mobile phone found in the car revealed that Mr Halpin had been in the vicinity of five other music festivals that summer between 8 June and 3 September 2017. Inquiries with his bank showed that £6,200 had been deposited into his account between 21 July and 3 September 2017. The prosecution case was that these deposits represented the proceeds of sale of nitrous oxide at earlier festivals, and they formed the basis of count 1. The offending in count 1 was thus different from and additional to that in count 2, the former relating to the proceeds of sale at earlier festivals and the latter to possession for sale at the last festival.

Mr Halpin initially pleaded not guilty at the plea and trial preparation hearing and a trial date was fixed. He then changed solicitors and asked for time to serve the defence case statement pending the Court of Appeal’s judgment in R v Rochester [2018] EWCA Crim 1936. After that judgment was handed down on 17 August 2018, guilty pleas were indicated on 19 August. His plea to count 1 was entered on a basis that only the £640 paid into his account on 2 September 2017 had been the proceeds of sale, but when the judge pointed out that the difference between the prosecution case and the basis of plea would materially affect sentence, further time to reach agreement was requested and granted. In due course Mr Halpin accepted that two thirds of the cash (approximately £4,000) had been criminal property, and the judge said there was no need to try the issue.

Mr Halpin was aged 32 at the time of the offences. He had a number of previous convictions, mainly for theft, other dishonesty offences and public order offences, but none for drugs. He had served prison sentences several times, the longest being 27 months in 2011. His mitigation was that he had held an honestly mistaken belief that nitrous oxide was not regarded as a psychoactive substance, based on news coverage of trials in the Crown Court relating to nitrous oxide which had collapsed. On the degree of harm which inhalation of nitrous oxide might cause, the defence sought an adjournment to allow completion of an expert’s report already in preparation, in line with Sentencing Council guidance from June 2018 about sentencing drugs offences involving newer and less common drugs, which stated that sentencers should expect expert evidence to assist in determining potency and equating quantity to harm. In the event the judge did not adjourn the hearing. There was some evidence from a witness statement of Susan O’Sullivan, a forensic scientist, dated 17 January 2018, which said that nitrous oxide, also known as laughing gas, was a volatile, nearly odourless gas used medically in combination with oxygen or air for short term pain relief and anaesthesia and commonly found in gas refill cylinders used for products such as whipped cream. It might also be abused for its euphoric effects. Reported adverse effects included residual sedation, confusion, disorientation, headaches, nausea and vomiting. Larger doses might result in loss of consciousness and could cause asphyxiation by oxygen displacement.

The court had a statement from a police officer about the likely proceeds from each canister. The gas was commonly transferred into balloons from which it could be inhaled. A single canister usually filled three to five balloons, which sold for £3 to £5 each. On that basis, the canisters in Mr Halpin’s possession could have made him between about £15,000 and £42,000. Although nitrous oxide might have been a legal recreational drug for many years and had a wide range of lawful uses, the fact that it was a psychoactive substance was not doubted in R v Grigas [2017] EWCA Crim 1819 on 25 October 2017, and in Rochester the Court of Appeal rejected a challenge to the contention that it was a psychoactive substance.

The judge in his sentencing remarks did not reject Mr Halpin’s claim that he had not known that possessing nitrous oxide was illegal, using phrases such as “whatever you thought might or might not be the status of nitrous oxide in law”. However, the judge said it had been illegal for over a year and its illegality had generated a great deal of publicity. He regarded three features, apart from Mr Halpin’s record, as making it a case crossing the custody threshold. First, there was what the Court of Appeal had said in R v Bush [2014] 1 Cr App R (S) 40 at [12], that the circumstances of offending at summer music festivals constituted a significant aggravating factor, as teenagers attended such festivals often for the first time away from direct parental control and were particularly vulnerable to those trying to sell them drugs, so anyone involved in such an enterprise, even on a relatively low level basis, must expect an immediate custodial sentence. Secondly, there was the very large number of canisters involved; this was not merely a box or two. Thirdly, Mr Halpin had been involved in selling canisters for some time, as shown by his plea to count 1, so this was not a one off discovery at the Lockdown Festival and he had made a deal of money out of it.

The judge treated nitrous oxide as analogous to a class C drug and as posing a risk of harm a little lower than the ordinary run of class C drugs. His approach in looking for an appropriate analogy followed what the Court of Appeal had said in R v Waka [2018] 1 Cr App R (S) 54 at [15], namely that until there were guidelines applying to offences under the Psychoactive Substances Act 2016 a court should ordinarily have regard to the statutory guidelines for drug offences and should seek to sentence in a way that reflected the sentence that would apply to the drug and factual situation in the guideline which, on the information before the court, represented the closest approximation to the situation before the court. Using the classification in the definitive guideline on sentencing for drugs offences issued by the Sentencing Council, the prosecution suggested this was category 3 street dealing with Mr Halpin’s role being significant because it was his own operation and he was motivated by a desire to make money. For class C drugs, that would have resulted in a starting point of six months’ imprisonment with a sentencing range of three to eighteen months. The judge did not refer to the guideline expressly, but because of the aggravating factors, and balancing them against the absence of relevant recent convictions, he took fifteen months’ imprisonment as his starting point, which he reduced to twelve months to reflect the guilty pleas, which he then suspended because the risk posed could be dealt with outside prison.

There was an error in the judge’s calculation of the credit for the guilty pleas. He said he would discount by 25 per cent, but a reduction from fifteen to twelve months amounted to only a 20 per cent reduction. The court proposed to correct the error by reducing the sentences to reflect the discount the judge thought appropriate.

Broadly speaking, there were two grounds of appeal. The first related to the sentence on count 1. The argument was that the offending did not cross the custody threshold and the judge failed to follow the definitive guideline on fraud, bribery and money laundering offences issued by the Sentencing Council. This was category B offending because it was Mr Halpin’s own operation and he was motivated by a desire to make money, and category 6 in terms of harm, the starting point for which was based on £5,000, which was more than the £4,000 admitted. Such offending had a high level community order as its starting point, with a sentencing range of a low level community order to twelve months’ imprisonment. It was said there was no basis for the judge to have gone beyond the starting point, let alone to have taken as his starting point a term longer than the upper end of the sentencing range. This was the ground on which the single judge granted leave, while observing it would not affect the overall sentence if the sentence on count 2 was upheld.

The second ground of appeal related to count 2. The single judge refused leave on this ground, and the application for leave to appeal on it was being renewed. Two points were taken. First, since the judge did not adjourn the hearing for expert evidence on the degree of harm which nitrous oxide was capable of causing, it was said he should have sentenced Mr Halpin on the basis that it was one of the least harmful psychoactive substances and consequently particularly low for the purpose of assessing harm in the context of the guideline. In that connection, advice to the Home Secretary and the Secretary of State for Health from the Advisory Council on the Misuse of Drugs in March 2015, which Mr Halpin’s legal team had but which the judge was not shown, was said to be relevant. That advice stated that the harmfulness of nitrous oxide did not appear to warrant control under the Misuse of Drugs Act 1971. It went on to say there was no firm evidence of physical dependence, it appeared to have few if any short term adverse effects other than mild headaches for some individuals, and long term abuse could cause peripheral sensory neuropathies, vitamin deficiency and related anaemia as a result of the inactivation of vitamin B12 in the body by the gas. Deaths linked to nitrous oxide were rare; in 2012 the National Programme on Substance Abuse Deaths reported five deaths in 2009 and two in 2008 from asphyxia associated with inhalation of nitrous oxide. To that might be added the fact that the maximum sentence for an offence under the 2016 Act was seven years’ imprisonment, whereas the maximum for possessing a class C drug with intent to supply was fourteen years. The other aspect of this ground was that the features the judge regarded as aggravating the offending did not justify as high a starting point as fifteen months, especially as count 2 related only to the canisters taken to the Lockdown Festival.

Like the single judge, the Court of Appeal was not persuaded by the arguments about the sentence on count 2. The sentencing judge treated the nitrous oxide as posing a risk of even less harm than class C drugs, and the court doubted that the advice from the Advisory Council on the Misuse of Drugs would have affected the judge’s view that the risk of harm posed by nitrous oxide was at a comparatively low level. In the light of the judge’s view on the evidence he had, the court did not think he could fairly be criticised for not adjourning the hearing until the report which Mr Halpin’s legal team had commissioned became available. Nor did the court think that the aggravating features the judge identified failed to justify a high starting point. The fact that the offending took place at music festivals was highly significant. The number of canisters showed this was quite a sizeable operation. The money he could have made, even taking account of his outlay in buying the canisters, was likely to have been substantial. Of course it was his offending only at the Lockdown Festival for which he had to be sentenced on count 2, but the significance of count 1 in its impact on count 2 was that it showed his offending at that festival was not an isolated occasion.

Having said all that, the judge had to sentence Mr Halpin on two counts. His primary task was to identify the overall sentence for the whole of the offending. If the overall sentence was not manifestly excessive, the court was unlikely to interfere with how it was structured between the counts. So even if the starting point of fifteen months for each of the offences was too high when those offences were looked at individually, that did not mean that the judge’s overall starting point of fifteen months, when looking at the offences cumulatively, was too long. Some judges might have imposed shorter sentences for each offence but ordered them to run consecutively. Other judges might have imposed a shorter sentence on count 1 and ordered it to run concurrently with the sentence on count 2. However, as the definitive guideline on offences taken into consideration and totality issued by the Sentencing Council said, there was no inflexible rule governing whether sentences should be structured as concurrent or consecutive components, and the overriding principle was that the overall sentence must be just and proportionate.

In the court’s view, suspended sentences totalling fifteen months’ imprisonment before giving credit for the guilty pleas would have been both just in the circumstances of the case and proportionate to the offending. In any event, the court thought the judge was entitled to treat count 1 as seriously as he did because the criminal property to which it related were the proceeds of sale of large quantities of psychoactive substances to vulnerable young people at a number of music festivals in the course of a single summer. However, in order to correct the arithmetical error in the judge’s discount for the guilty pleas, the court proposed to reduce the sentences on each count to eleven months’ imprisonment suspended for eighteen months. Accordingly, the court quashed the sentence of twelve months’ imprisonment suspended for eighteen months on each count. In respect of count 1, the court allowed the appeal and imposed a sentence of eleven months’ imprisonment suspended for eighteen months. In respect of count 2, the court granted Mr Halpin leave to appeal, treated the hearing of the renewed application as the hearing of the appeal, allowed the appeal, and imposed a sentence of eleven months’ imprisonment suspended for eighteen months on that count as well.

In short, the appeal was allowed solely to correct the arithmetical error in the discount for guilty pleas, reducing each concurrent suspended sentence from twelve to eleven months.

Rochester [2018] EWCA Crim 1936
Grigas [2017] EWCA Crim 1819
R v Bush [2014] 1 Cr App R (S) 40
Waka [2018] EWCA Crim 125; [2018] 1 Cr. App. R. (S.) 54