England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		3rd February 2017

Friday 3^rd February 2017

LADY JUSTICE SHARP: I shall ask Mr Justice Holroyde to give the judgment of the court.

MR JUSTICE HOLROYDE:

1. On 15^th June 2016, in the Crown Court at Snaresbrook, the appellant was sentenced to a total of seven and a half years' imprisonment for a number of drugs offences to which he had pleaded guilty on earlier occasions. Ancillary orders were made for forfeiture of cash and items seized from him. He now appeals against his total sentence by leave of the single judge. The court is grateful to Miss Wilson for her able submissions on his behalf.
2. The appellant is now 27 years old. The offences for which he was sentenced fell into two groups. The first group related to his arrest at his home on 28^th October 2015 when he was found to be in possession of 40 wraps of crack cocaine, collectively weighing 4.61 grams; 19 wraps of heroin, collectively weighing 2.03 grams; £755 in cash; six mobile phones; and a quantity of counterfeit currency. Examination of the mobile phones revealed a number of text messages showing that he had been selling drugs. In addition, he was found to be in possession of a small amount of cannabis.
3. Upon his arrest, the appellant put forward a lying account that the drugs were all for his personal use and that the cash was a gift or gifts from his recent birthday.
4. He was charged on indictment T20160241 with two offences of possession with intent to supply a Class A controlled drug; the counts related to the two different types of drug. His possession of the cannabis was later the subject of a guilty plea before a magistrates' court under committal for sentence S20160041.
5. Following his arrest on 28^th October 2015, and significantly for the purposes of this appeal, the appellant was granted bail.
6. When he came before the Crown Court in relation to the first offences, he initially entered not guilty pleas on 13^th April 2016. At that hearing his case was listed for trial in October 2016.

Well before that trial date, on 8^th June 2016, the appellant asked to be re-arraigned and pleaded guilty to the two offences which we have mentioned.

7. Going back in time, the second group of offences was committed whilst he was on bail for the first group. In summary, within weeks of being arrested for the first offences, he was back on the streets selling class A drugs. On 17^th, 21^st and 23^rd December 2015, he supplied drugs to an undercover police officer. The first of those occasions involved the supply of four wraps for £25. The second occasion, when the undercover officer noted that he was in possession of a "golf ball size quantity of wraps", the appellant supplied four wraps for £25 and offered five wraps for £30. On the third occasion, he supplied a further four wraps for £30. On that occasion, he was in the company of another man who had a discussion with the undercover police officer about prices of drugs.
8. For these offences, the appellant was arrested on 26^th April 2016. He was found to be in possession of £240 in cash, two mobile phones and six SIM cards. He pleaded guilty at his first Crown Court appearance on 18^th May 2016 to six offences of supplying Class A controlled drugs. Those offences were charged on indictment T20160516.
9. Unfortunately, these were not the first drugs offences which the appellant had committed. In July 2011, he was sentenced to two years' imprisonment for offences which included four of possession with intent to supply of crack cocaine and heroin. Following that sentence, on two subsequent occasions he was convicted of offences of possession of cannabis.
10. No pre-sentence report was before the sentencing judge. None was necessary then, and none is necessary now. Both the sentencing judge, Her Honour Judge Amakye, and we have the benefit of a number of documents which plainly show a better side to the appellant. It is clear that he has made efforts, for which he is to be commended, to address his drug addiction whilst he has been in custody for these offences. It is also clear, in particular from a letter to the court written by his mother, that in the past the appellant has made attempts to overcome the drug problem from which he has suffered since his late teens. It appears that he had a measure of success some years ago, but he lapsed in 2015 and fell back into selling drugs in order to be supplied with drugs for his own use.
11. In mitigation on his behalf, it was submitted to the court below that the appellant made no real financial gain from these offences; his reward was payment in drugs. It was also submitted that after he had been arrested for the first offences, when his stock of drugs and cash were seized, he was held responsible for that loss by those above him in the chain of supply and was required to resume selling drugs when released on bail in order to clear his debt. Reliance was placed on the presence of another man on the last of the three occasions of supply to an undercover police officer, as indicating that the appellant played a lowly role in the chain of supply and was, effectively, under supervision.
12. In her sentencing remarks, the learned judge accepted the submission that, in terms of the sentencing guidelines, this offence of selling directly to users fell into category 3. As to the role played by the appellant, she rejected the submission made on his behalf, that he should be found to have played only a lesser role. At page 4D of her sentencing remarks, she said this:

"… I am of the view that your offences do fall to be sentenced within category 3, culpability demonstrated by a significant role in that you were aware of others in the pecking order and had some awareness and understanding of the scale of the operation. This is plainly reflected in the fact that no sooner had police arrested you for the offences of 28^th October, you were up and running within a short period of time in December 2015.

The starting point is four years and six months, category [range] three and a half to seven years.

I also bear in mind the fact that you have an antecedent record [of] one previous conviction for possession with intent to supply class A drugs in this court."

13. The learned judge concluded that the appropriate sentences were as follows: for each of the offences in the first group, three and a half years' imprisonment, those sentences to run concurrently, the one with the other; for each of the offences in the second group of offences, four years' imprisonment, those sentences to run concurrently, the one with the other, but consecutively to the sentences for the first group. She imposed no separate penalty for the possession of cannabis offence. Thus, she came to the total of seven and a half years' imprisonment.
14. The grounds of appeal are as follows. First, it is said that the learned judge took too high a starting point for each of the groups of offences. Miss Wilson submits that the judge should have treated the appellant as playing only a lesser role, or at the very most a role on the cusp of the lesser and significant categories, because he was no more than a "runner", who played the limited role of passing wraps of drugs to street users, receiving payment from them, and carrying that payment back to those above him. The later offences, she submits, were committed under a degree of intimidation and exploitation of his own addiction. Miss Wilson argues that there was no evidence before the court as to the scale of the wider drug supplying operation, or as to the appellant's knowledge of it.
15. Secondly, it is submitted that the learned judge appears to have adopted an incorrect approach to the giving of credit for the appellant's guilty pleas to the first group of offences.
16. Thirdly, it is submitted that, whilst mentioning the principle of totality, the learned judge failed to have sufficient regard to that principle.
17. In reflecting upon those submissions, we look to the Sentencing Council's Definitive Guideline on Sentencing for Drug Offences. The guideline makes clear at step one of the sentencing process:

"In assessing culpability, the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories, the court should balance those characteristics to reach a fair assessment of the offender's culpability".

18. In our judgment, this case calls for such a balancing exercise. It seems to us – and indeed the learned judge plainly took the view – that there is present here a factor capable of demonstrating a "significant" role, namely, that the appellant was "motivated by financial or other advantage, whether or not operating alone". In our judgment, there was also present a second such factor, namely, that the appellant had "some awareness and understanding of scale of operation".
19. On the other hand, Miss Wilson argues that a number of characteristics of a "lesser" role are present. She argues that the appellant was performing "a limited function under direction"; that he was "engaged by pressure, coercion and intimidation" in relation at least to the second group of offences; that he had "no influence on those above in a chain"; and that he had "very little, if any, awareness or understanding of the scale of operation". As to the last of those points, Miss Wilson argues that the appellant was no more than a drug "runner" who knew no more than was necessary for him to know to perform those very limited functions.
20. In our judgment, a balancing of those considerations leads to the conclusion which the judge drew below, namely, that on a fair assessment of his culpability the appellant fell into the "significant" role category. The reasons why we take that view are these.
21. As to the appellant's motivation, the guideline is clearly not limited to financial reward. He was motivated by the prospect of gaining a different form of advantage, namely, the provision to him of drugs for his own use.
22. Next, we conclude that the judge was entitled to regard the appellant as having some awareness and understanding of the scale of operation. He was, after all, arrested in October 2015 in possession of an appreciable stock of drugs for onward supply and a substantial sum of money, as well as six mobile phones. Those findings upon his arrest are, in our view, wholly incompatible with any suggestion that he was a mere delivery boy, sent by way of errand to convey a specific purchase of drugs to a specific customer. Moreover, having been arrested and bailed for those first offences, within a very short space of time he was once again selling drugs on the street. He knew, therefore, at the very least, that the organisation was of a scale which enabled those above him to trust him to hold significant stocks of cash and drugs, and which was able, within a very short time of the seizure of one stock by the police, to set him up again with another stock.
23. As to other matters relied upon by Miss Wilson, we accept that in relation to the second group of offences the appellant was no doubt in a difficult position in his dealings with those above him. But it was a difficulty entirely of his own making. The drugs had been seized from him on his first arrest because he was engaged in criminal activity. He was back out on the streets selling because he had denied the offences of which he knew he was guilty and had on that basis obtained his bail. Thus, there is a severe limit to how much weight can be given in his favour to the proposition that he was under a degree of pressure.
24. We conclude, therefore, that the learned judge was entitled to put the appellant's role into the "significant" category. It may be that in relation to the first group of offences a fair assessment would put him at the lower end of the category range. But when it comes to the second group of offences, when he was sufficiently aware of what was going on to know that he could immediately be put back to work by those above him, and was on bail, the judge was, in our judgment, bound to take the view that a sentence starting point in excess of the guideline starting point was necessary.
25. We turn next to the submission made as to credit for the guilty pleas. The appellant was, undoubtedly, entitled to credit for his guilty pleas. With respect to the learned judge, it is unfortunate that she did not specify precisely what credit she had given. That is particularly so because at page 3G of her sentencing remarks she said this:

"At the time of your arrest for the offences committed in December 2015, namely the matters for which you pleaded guilty before me on 18^th May, you were on bail for the offences of 28^th October. I do view this as an aggravating factor of your case and as such in so reflecting it reduces the credit for your plea before me in May."

That, with respect, is not happily phrased, and we understand why Miss Wilson submits that the learned judge may have fallen into some error of principle in her approach.

26. The correct approach, as we accept, is in accordance with Miss Wilson's submission: that the judge should first have reached a conclusion as to the appropriate level of sentence for each group of offences, applying the sentencing guideline, and taking into account the aggravating feature of the appellant being of bail at the time of the second group, before then going on to determine what level of reduction should be made from those sentences to reflect the guilty pleas. The judge should then go on to take account of the principle of totality.
27. Adopting that approach, it seems to us that the level of credit for the guilty pleas to the first offences could only ever have been limited, because those pleas were significantly delayed. Having regard to when those pleas were entered, it seems to us that the appellant could not fairly expect a reduction in his sentence of more than 15, or at the very most 20 per cent. In contrast, his guilty pleas to the second group of offences were entered at an early stage and he was entitled to a reduction of one-third from the sentences he would otherwise have received for those offences.
28. As to totality, Miss Wilson has taken us to the passages on which she relies, as indicating that the judge acknowledged the principle, but failed to apply it in practice. We are not able to accept that submission. It seems to us clear from the judge's sentencing remarks that she had the principle well in mind. She was, however, required not to lose sight of the serious aggravating feature that the second group of offences was committed whilst on bail for the first.
29. In all those circumstances, we have come to the conclusion that there was no error of principle in the learned judge's approach. The total sentence which she reached was undoubtedly a stiff one, and it may be that it was at the upper end of the range which was legitimately open to her. We are, however, unable to conclude that it was manifestly excessive.
30. For those reasons, notwithstanding Miss Wilson's submissions, this appeal fails and is dismissed.