Khalil, R. v

A sentence for simple possession of heroin is manifestly excessive where the sentencing judge proceeds on the erroneous basis that the offence was possession with intent to supply. The error is especially material where the quantity is very small and the drug was possessed for the offender’s personal consumption.

The appellant pleaded guilty at Wolverhampton Crown Court to possession of cannabis with intent to supply, possession of heroin, possession of a bladed article, and possession of an air rifle and pellets. He received a total sentence of two years’ imprisonment.

He appealed only the 18-month sentence for simple possession of heroin. The heroin was a small quantity, said in interview to be worth £5, and was possessed for his own consumption as a long-term heroin addict. The sentencing judge mistakenly stated that she was sentencing for possession with intent to supply.

1. Appeal allowed to a limited extent. The 18-month sentence for possession of heroin was quashed and replaced by nine months’ imprisonment, concurrent with the 12-month sentence for possession of cannabis with intent to supply.
2. The appellant had been indicted for simple possession of heroin. The sentencing judge nevertheless stated that she was sentencing him for possession with intent to supply. That was an error.
3. The court had little doubt that, had the error been identified, the judge would not have imposed 18 months’ imprisonment. The amount of heroin was very small and was held for the appellant’s personal consumption.
4. The sentence on that count was therefore manifestly excessive. The consecutive six-month sentence for possessing a bladed article remained, so the total sentence was reduced from two years to 18 months’ imprisonment. The 21 days spent on remand continued to count towards sentence.

• Court of Appeal (Criminal Division): Allowed the appeal against the heroin-possession sentence to a limited extent and substituted a concurrent sentence of nine months’ imprisonment: [2009] EWCA Crim 1349.
• Crown Court at Wolverhampton: On 23 January 2009, sentenced the appellant to a total of two years’ imprisonment following guilty pleas to four counts.