Neutral Citation no.† [1999] 1938






Judgment: approved by the Court for handing down



(subject to editorial corrections)














This is an application for leave to appeal against sentences of imprisonment imposed on the applicant at Newry Crown Court on 12 March 1999.† The applicant had pleaded guilty to two charges of possession of a class B drug (cannabis resin) and possession of that drug with intent to supply.† She was sentenced to three years imprisonment on each count, the sentences to run concurrently.


The applicant is a twenty seven years old married woman.† She is the mother of five children.† On the evening of 27 February 1998 she was driving her car at Dublin Road, Newry when it was stopped by police.† It was found to contain 9.63 kilogrammes of cannabis resin hidden under the back seat.† In interview with police she admitted that she had been paid £100 to transport drugs but claimed that she did not know the nature of the drugs nor the amount involved.† The persons for whom the applicant claimed to be transporting the drugs have not been arrested.

The applicant's personal circumstances

The applicant has a long history of behavioural problems.† In particular she suffers from chronic obsessional checking behaviour.† She has also been diagnosed as suffering from Asperger's syndrome which is a form of autism which affects how she relates to and communicates with others.† She is less able than a normal person to appreciate social rules and norms.

The applicant's youngest son is autistic and suffers from severe learning difficulties.† He is now four years old and it has been suggested (by Ms Joanne Douglas, a psychologist) that he is at a crucial stage of his development and in critical need of the support and care of both parents.† Since the applicant has been committed to prison, this child has been cared for (albeit with difficulty) by his father.

The hearing of the application

On the hearing of this application, counsel for the applicant relied principally on the failure of the trial judge to consider the imposition of a custody probation order, as required by Article 24(1) of the Criminal Justice† (Northern Ireland) Order 1996.† Counsel accepted that the sentences imposed fell within the range of appropriate penalties suggested by this court in guideline cases such as R v Hogg and others (1994) N.I. 258, R v Haveron and others (7 July 1995) and R v Conlon (7 February 1997).† He suggested, however, that this was clearly a case for the imposition of a custody probation order, especially because of the longstanding difficulties which the applicant suffered and her obvious need for continuing support in dealing with those difficulties.

The 1996 Order

Article 24 of the 1996 Order provides:-

"(1)††††† Where, in the case of a person convicted of an offence punishable with a custodial sentence other than one fixed by law, a court has formed the opinion under Articles 19 and 20 that a custodial sentence of 12 months or more would be justified for the offence, the court shall consider whether it would be appropriate to make a custody probation order, that is to say, an order requiring him both -


(a) to serve a custodial sentence;


(b) on his release from custody, to be under the supervision of a probation officer for a period specified in the order, being not less than 12 months nor more than 3 years.


(2)††††††† Under a custody probation order the custodial sentence shall be for such term as the court would under Article 20 pass on the offender less such period as the court thinks appropriate to take account of the effect of the offender's supervision by the probation officer on his release from custody in protecting the public from harm from him or for preventing the commission by him of further offences.


(3)††††††† A court shall not make a custody probation order in respect of any offender unless the offender consents and, where an offender does not so consent, the court shall not pass a custodial sentence of a greater length than the term the court would otherwise pass under Article 20.


(4)††††††† Where in any case the court does not consider a custody order to be appropriate, the court shall state in open court that it is of that opinion and why it is of that opinion.


(5)††††††† A court which makes a custody probation order shall state the term of the custodial sentence it would have passed under Article 20 if the offender had not consented to the order"


In dealing with the circumstances in which it is appropriate to make a custody order, this court said, in Attorney General's Reference (No 1 of 1998):-

"It hardly needs to be said that the court should not regard it as correct as a matter of routine to make a custody probation order where a custodial sentence of 12 months or more would be prima facie justified. Still less should it be tempted to resort to it as an easy option or compromise.


In our view the court should look for some material which indicates that there will be a need to protect the public from harm from the offender or to prevent the commission by him of further offences. The relevant time at which the existence of that need is the time of his release."


It is only where the court considers that the effect of a probation order will be to reduce the risk of harm to the public when the offender is released or render it less likely that he will commit further offences that it will impose a custody probation order, therefore. As this court also said in the recent case of R v Lunney (26 March 1999), however,

"The protection of the public by probation will be the consequence of the rehabilitative effects of probationary supervision rather than the end in itself of that supervision."


The court should only make a custody probation order, therefore, where it considers that the defendant will co-operate with and benefit from the probationary supervision.† It is for this reason that the consent of the offender is required.

The present case

It does not appear that the possibility of a custody probation order was drawn to the attention of the learned trial judge.† We consider that counsel for the prosecution and the defence have a duty to address the judge on this question in appropriate cases and that this should have been done in the present case.† It seems unlikely that the judge considered whether to make such an order since no reference to it appears in his sentencing remarks.

It is by no means certain that, if the matter had been drawn to his attention, the trial judge would have made a custody probation order since at the time that these offences were committed the applicant was already on probation as a result of her conviction in July 1997 of obtaining property by deception.† It is open to this court, however, to consider whether, in the circumstances as they now exist, this would be an appropriate course.

In the pre-sentence report on the applicant it was stated that she had co-operated with her previous probation officer.† It was also accepted that she had become involved in the affair because of her wish to obtain cash and that she was unaware of the amount of drugs to be transported and now realises the very serious risk that she had taken.† These factors, combined with the applicant's relatively clear record and her home and personal circumstances, have persuaded this court that a custody probation order would be appropriate in her case.

It must be emphasised, however, that this court considers that the offences in this case are extremely serious.† The role of couriers in the distribution of drugs is indispensable to those who ply this evil trade.† Drug dealers themselves and their immediate associates are often recognisable by the police.† They rely crucially on couriers, often selecting those of apparently innocent appearance and background.† It is vital that those who, tempted by the financial rewards for the seemingly simple task of transporting drugs, allow themselves to be used in this way should clearly understand that heavy penalties will be imposed if they are apprehended.† This is necessary not only to discourage potential couriers but also to send a clear message to the drug dealers that the tactic of employing otherwise innocent people to carry out this work will not deter the courts from punishing such couriers severely.

††††††††††† In our view the learned trial judge sought to balance the seriousness of the offence with the sad domestic situation and personality difficulties of the applicant, but it does not appear that he had opened to him the possible mechanism of the custody protection order for achieving this end.

††††††††††† We take the view that a more severe sentence would have been appropriate to reflect the seriousness of the offence and that one of four years would be more commensurate with the guideline cases and would be the appropriate sentence under Article 20 of the Criminal Justice (Northern Ireland) Order 1996.

††††††††††† However we also take the view that she would benefit from a period of† probation, and that the interests of the public would be properly protected if she were to undergo a period of two years probation after release from prison and accordingly we quash the sentence passed and substitute therefor a custody probation order providing for a custodial sentence of two years imprisonment to be followed by a period of two years probation, a course which requires the consent of the applicant.