R v Colin Peter Evans

The facts

On Wednesday 1 November 2023 police officers on duty in plain clothes in the area of Clive Street, Cardiff witnessed the appellant supply another man, Mr Day, with a wrap containing 0.085g of diamorphine. The police followed the appellant back to his flat in Clive Street where he was arrested and his flat was searched where they found a very small amount of diamorphine (0.751 grams) consistent with a half-tenth street deal with a street value of between £30 to £40 and some drugs paraphernalia. The appellant explained that the diamorphine belonged to him and was for his own personal use; he smoked a gram every two days and used money from his benefits to pay for his habit and the paraphernalia was connected with his own drug use.

He was released on investigation the next day and over a year later on 25 January 2025 he was sent a postal charge and requisition for possession with intent to supply class A drugs to appear at the Magistrates' Court on 25 March 2025. He indicated a guilty plea at the Magistrates' Court and pleaded guilty at the Crown Court sitting at Cardiff on 22 April 2025 at the first available opportunity. On that occasion the case was adjourned for a pre-sentence report on an "all options open" basis.

"It is highly likely that Mr Evans is a heroin user involved in the supply of controlled drugs to a close circle of other class A drug users. This is likely to be for financial gain but for the most part to cover their own cost of purchasing controlled drugs."

The appellant was 55 at the time of sentence and 53 at the time of the offence. He has an unenviable record of 27 convictions for 72 offences between 29 October 1984 and 3 July 2014. There were 19 drug offences between 1987 and 2014 including class A trafficking offences (as defined in s. 313(5) of the Act ) in 1995, 1997, 2002, 2011 and finally 3 July 2014 for which he had received a 68 month term of imprisonment.

The prosecution accepted that under the Sentencing Council guidelines the offending was in category 3 harm (selling direct to users) with lesser culpability with a starting point of three years' imprisonment and a range of two years to four years six months and that the only aggravating feature was his previous convictions. They also accepted that he had pleaded guilty at the earliest opportunity.

The defence submitted that there were exceptional circumstances that justified the disapplication of the minimum term provisions. The offence consisted of supplying another addict with a single wrap of heroin weighing less than one gram almost 10 years after the commission of the appellant's last drug offence. There had been no further offending since his arrest two years and eight months previously.

As for the appellant's circumstances, he had been seeking assistance with regards to his abuse of drugs from the Community Addiction Unit since 2020. He was on the Buvidal opiate substitute programme and had completed a Tier One therapy course and was awaiting to move onto Tier Two. He had provided a number of personal references to show that he had another side to his behaviour and that there were people who were willing to speak well of him. He had not had the benefit of court ordered probation assistance since 1988.

It was submitted that an alternative to immediate custody might provide the opportunity for the assistance of the Probation Service and perhaps some drugs rehabilitation courses so that the appellant might work on some of the good progress he had shown by his voluntary attendance on such courses.

At the sentencing hearing the prosecution took no issue with the defence submissions on the exceptional circumstances relating to both the offence and the offender in this case and also observed that the delays that had occurred in the case could further assist the defence arguments.

The appellant had received an encouraging pre-sentence report which assessed him as being at a low likelihood of being reconvicted for any offence within two years. The pre-sentence report also noted that although there was a medium risk of harm to both himself and other drug users if he were to sell class A drugs to other drug users in the community, the risk was not imminent and would be reduced if he remained on the Buvidal injection programme. With the help that the appellant was receiving from the Community Addiction Unit to reduce his poly drug use and the support from the therapy with the Buvidal injections and psychological service, the report author recommended a sentence of a 24 month community order with 10 rehabilitation activity requirement days and a 90 day curfew.

There was also a reference before the court from the principal clinical psychologist from the Buvidal Psychological support service of the Cardiff & Vale University Health Board that stated that despite significant barriers and a history of complex trauma beginning from childhood, the appellant had engaged with therapy and was developing coping strategies to manage his symptoms of PTSD and to support his wellbeing. He had also made significant progress after commencing Buvidal and reported that he was no longer using illicit opiates. There was also a supportive report from the shared care liaison nurse from the Community Addiction Unit detailing the progress he had made since 2020, the difficulties he was overcoming and the positive changes that the appellant was making to improve his life. He had a character reference from his brother about his positive qualities and the determined steps he was now taking to address his longstanding drug and psychological problems. There was also a reference from his next door neighbour that spoke of his good neighbourliness and friendship.

In brief sentencing remarks, the Recorder correctly referred to the Sentencing Council guidelines. He concluded - and there is no challenge to this assessment - that if the minimum term provisions had not been engaged, the appropriate sentence would have been 30 months less a one-third reduction for his guilty plea, arriving at a final sentence of 20 months' custody.

"In your case I am not satisfied that there are exceptional circumstances of the offence, or relating to you, or the previous offence that would not justify imposing the minimum term. The matters which you have raised are good mitigation but they are not exceptional. Even when taken together they are not unusual in the spectrum of cases which come before this Court."

It was common ground that s.313 (2A) of the Act applied in this case since the index offence for which the appellant was to be sentenced was committed after s.124 Police, Crime, Sentencing & Courts Act 2022 came into force (28 June 2022) and the court was required to impose a custodial term of at least seven years, unless the court was of the opinion that there were exceptional circumstances which (a) related to any of the offences or to the offender, and (b) justified not doing so.

"The circumstances must truly be exceptional. Circumstances are exceptional if the imposition of the minimum term would result in an arbitrary and disproportionate sentence.

One or more lower culpability factors

One or more mitigating factors

A plea of guilty."

In this case the offence concerned the supply of a single wrap of a very small quantity of diamorphine on one occasion to another entrenched class A drug user in order for the appellant to fund his own habit.

As to the appellant's circumstances, he had committed no offences for almost 10 years prior to the commission of this offence and had committed no further offences in the two-and-three-quarter year period after the commission of this offence prior to sentence. He had been seeking help on a voluntary basis from the Community Addiction Unit since 2020 (three years before his arrest) and making some progress. Subsequent to his arrest he was making significant progress. He had completed the Tier One course on the Buvidal programme and if he was able to serve his sentence in the community he would have been referred onto the Tier Two course where it was anticipated by the health professionals that his gains would be consolidated and further progress would be made. He was working well with the Buvidal psychological support services provided by the Health Board and addressing long-standing childhood trauma and opiate addiction since his teenage years. He was in the process of turning his life around with settled accommodation in a local authority flat, supportive family and neighbours and a dog he cared for greatly.

Since commencing on Buvidal in 2023 he had engaged fully with support and attended appointments to promote his recovery. He was being open and honest about triggers and the challenges he faced in maintaining abstinence with the Community Addiction Unit. He had made difficult choices, including isolating himself from drug user friends who had previously formed his friendship group to ensure that he maintained abstinence from illicit drug use. He was at a stage in his recovery from addiction where he could move forward and make positive changes to improve his life. He had the support of family and neighbours.

We conclude that the appellant had amply demonstrated to the sentencing court that there were exceptional circumstances that justified not imposing the statutory minimum term and that the Recorder erred in reaching the opinion that he had not. The combination of factors relevant both to the offence and the offender justified the imposition of an alternative sentence. The well-evidenced and proven hard won progress that the appellant had made, most particularly in the two year period since his arrest in 2023, was significant. He had achieved a level of stability in his life and the building blocks were in place for further progress with his acceptance on the Tier Two Buvidal course. There was cause for optimism. The imposition of the minimum term removed those chances. The sentence imposed was wrong in principle and resulted in a sentence that was manifestly excessive.

The Recorder correctly identified that the appropriate sentence under the guidelines where the minimum term was not justified would have been 20 months. We agree. The Recorder would then have been required to consider whether it was a sentence that could be suspended and considered the factors listed in the Sentencing Council guidelines. Had he done so, he would doubtless have suspended the sentence. At least three of the four factors indicating that it may be appropriate to suspend a custodial sentence applied in this case. There was a realistic prospect of rehabilitation in the community, he did not present a high risk of reoffending or harm and he had strong personal mitigation dating back to his childhood trauma. None of the factors indicating that it may not be appropriate to suspend a custodial sentence applied: he did not present a significant risk to others; the seriousness of the offence did not mean that appropriate punishment could only be achieved by immediate custody; and he was not unlikely to comply with court orders in the future. In fact he had been given scant opportunities of support from the probation services previously since 1988 and all the indications were that he would respond well to community orders in the context of a suspended sentence.

We are extremely grateful to the Probation Service and in particular Mr Simon Wood for the assistance he has provided today at short notice to explain the available support to the appellant in the community and for Mr Evans' sister for offering him accommodation since the fact of his custodial sentence has resulted in the loss of his council flat (and for taking in his dog whilst he has been in custody).

We therefore allow the appeal. We quash the sentence of 2,045 days' imprisonment. We substitute his sentence for one of 20 months, suspended for a period of 12 months, with a supervision order and 10 Rehabilitation and Activity Requirement days. It is not necessary to impose any punitive elements bearing in mind the time that he has already spent in custody.

LORD JUSTICE LEWIS: Mr Evans, we need to remind you that if you break the suspended sentence order you could be required to spend the rest of the sentence in custody. The 20 month order will start from today.