Rachel Smith [2019] EWCA Crim 1077

Regina v Rachel Smith [2019] EWCA Crim 1077 concerned a reference by the Solicitor General under section 36 of the Criminal Justice Act 1988 against a sentence imposed for conveying drugs into prison in breach of a suspended sentence order; the Court of Appeal (Criminal Division) granted leave, held the sentence unduly lenient, but declined to increase it in light of the offender’s subsequent progress.

On 18 March 2019 at Bristol Crown Court Ms Smith, aged 44, pleaded guilty to conveying into a prison a list A article, contrary to section 40B of the Prison Act 1952, committed on 8 June 2018. She was sentenced to four months’ imprisonment suspended for eighteen months with a rehabilitation activity requirement of twenty days. By virtue of her plea she was in breach of a suspended sentence order imposed on 19 February 2018. In respect of that breach she was sentenced to a further ten days of rehabilitation activity.

The underlying facts were that on 8 June 2018 at about 2.00 pm Ms Smith visited her then partner, Josh Farnham, at HMP Bristol. Drugs were detected on her person. During a strip search she became aggressive and began to remove her own clothing. Two wraps containing seven Subutex tablets and tobacco fell from her bra. She remarked that it was just a bit of tobacco and Subutex. The tablets contained Buprenorphine, an opioid used to treat addiction but capable of misuse by crushing and snorting. It is a class C drug. In interview she made no comment. The visit took place during an existing relationship with Farnham, the same man on whose behalf she had committed the earlier offence. On 13 August 2017 Farnham had stabbed Tashan Corpe, who died. Ms Smith drove Farnham from the scene to various addresses. Both were arrested. Farnham was convicted of murder and Ms Smith of assisting an offender after trial before Simler J. On 19 February 2018 Ms Smith had been sentenced to twelve months’ imprisonment suspended for two years with a curfew requirement and a rehabilitation activity requirement. Simler J noted that after the fight had finished Ms Smith had stayed in the flat until hearing screaming, realised something serious had occurred, went out, saw the body and ran to call an ambulance, but was then half pushed and half pulled up the road by Farnham with little choice but to comply in an element of chaos and panic. The stand-down report had assessed her risk of reoffending as directly linked to her relationship with Farnham but wrongly thought it unlikely she would reoffend.

Ms Smith had an antecedent history of limited relevance, save for seven offences on three occasions. In May 2005 she had been made subject to a curfew for five instances of obtaining property by deception. She relied on medical evidence that she endured schizophrenia, for which she was medicated, and anxiety. Her general practitioner thought her mental health best supported in the community. She had kept to her licence conditions and had made arrangements to pay off debts in preparation for being housed. Her key worker confirmed her regular attendance at alcohol abuse sessions but noted her drinking had not decreased. Her older daughter wrote to the court stressing her mother’s change of circumstance since the index offence and that she was working with social services to obtain unsupervised contact with her younger daughter, P, who had a medical condition requiring surgery. P, aged twelve and in foster care, wrote explaining that postoperatively she would need her mother’s support. She claimed Farnham was a controlling influence. Another daughter, C, described her mother as vulnerable and on the day of the offending apparently delusional, making senseless comments. C thought her mental health had improved over the past year, particularly since medication was changed. The offender’s mother was candid that at the time of the offending Ms Smith was drinking too much and struggling to come to terms with the outcome of the trial. The pre-sentence report rehearsed that Ms Smith had been drinking heavily since imposition of the first suspended sentence and had been visiting Farnham fortnightly in prison. On one occasion he asked her to bring in Subutex and she agreed absent coercion or pressure. In hindsight she realised it was a terrible decision. She had ended her relationship with Farnham. Her poor choice of relationships and lack of assertiveness had initiated her behaviours. Her mental health was stable. She posed a low risk of reoffending save that a relationship with someone criminally active would increase it. She was wholly responsible for her behaviour but had worked hard since the index offence to address her problems. She neared completion of the rehabilitation activity requirement, had turned up at sessions with the drug and alcohol agency and with an organisation for victims of domestic violence or abuse, and had arranged to attend alcohol support groups with her general practitioner’s help. The author supported a community-based sentence.

The sentencing judge identified four points which prompted his decision. First, Ms Smith’s mental health was in a precarious state at the time of the offence. Second, the ongoing devastation to her life and the losses with which she was dealing were in play. Third, P’s impending operation had an effect. Fourth, Ms Smith had been engaging since the offence with ongoing offers of treatment. He felt able, just, to suspend the sentence. Aggravating features were that the offending occurred only four months after Simler J had imposed a suspended term of imprisonment. Mitigating features were her poor mental health, her progress since the offending, and the impact of a custodial sentence on her family.

The Solicitor General argued that the sentence was unduly lenient because it failed to take proper account of the nature of the offence and the aggravating features. In particular, for conveying list A articles into the prison estate the default position was loss of liberty, as established in R v Reynolds [2017] 1 Cr App R(S) 42. The Sentencing Guidelines on drugs, coupled with R v Gallagher [2016] EWCA Crim 925 and R v C [2012] EWCA Crim 2884, suggested that the length of the sentence was not of itself unduly lenient. However, at the time of the offending Ms Smith was four months into the initial suspended sentence for assisting the same offender on whose behalf she conveyed drugs into the prison estate. The combination should have precluded imposition of a further suspended sentence. As to the breach of the earlier suspended sentence, the Solicitor General submitted that the index offending justified immediate loss of liberty and the judge should have activated the suspended sentence at least in part.

For Ms Smith, Mr Binder, who had appeared below, argued that the judge had taken a legitimate path to a sentencing disposition consistent with the guidelines, authority, and experience. He made the sensible concession that the sentence, at its lowest, was lenient but argued that it was not unduly so. His client was extremely vulnerable and by the time of sentence had stabilised dramatically.

Lady Justice Rafferty, delivering the judgment of the court, held that the submissions of the Solicitor General were unanswerable. The sentence was unduly lenient. Introduction into the prison estate of drugs should usually lead to immediate loss of liberty. The deterrent effect was not to be underestimated. Ms Smith was additionally already in breach of a suspended sentence. The appropriate sentence would have been a sentence of four months immediate loss of liberty and the activation, in part, of the suspended sentence. She could not have complained of four months for the index offence and the activation of four months for the breach, consecutively, a total of eight months. The judge could have taken a merciful approach by making the terms concurrent. However, the reality of the life of an individual such as Ms Smith was that her raft of difficulties made it unlikely she would turn sharply onto the path of amended behaviour. Experience taught that more likely was a long extended bend. That, in the court’s view, was what was happening, the proof being in the progress she had made. The sentence was unduly lenient; a merciful one would have been four months’ imprisonment for the index offence and four months of the suspended sentence activated concurrently, a total of four months. The court declined, however, for all the reasons given and particularly because of the major efforts Ms Smith had made over nine months to right herself, to interfere.

In short, the sentence was held to be unduly lenient but the Court declined to increase it owing to the offender’s subsequent substantial progress.

Reynolds [2016] EWCA Crim 2217, [2017] 1 Cr App R (S) 42
James Robert William Gallagher [2016] EWCA Crim 925
Cooper [2012] EWCA Crim 2884