England and Wales Court of Appeal (Criminal Division) Decisions

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Cite as: [2018] EWCA Crim 816

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		Neutral Citation Number: [2018] EWCA Crim 816
		Case No: 201705094/A3

IN THE COURT OF APPEAL
CRIMINAL DIVISION

Royal Courts of Justice
Strand
London, WC2A 2LL

12 April 2018

B e f o r e :

LORD JUSTICE SIMON
MR JUSTICE TURNER
MR JUSTICE GARNHAM
____________________

	R E G I N A
	v
	TOM ROBERTS

____________________

Computer Aided Transcript of the Stenograph Notes of
WordWave International Ltd trading as DTI,
165 Street London EC4A 2DY,
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)

____________________

Mr B Kogan appeared on behalf of the Appellant
____________________

HTML VERSION OF JUDGMENT (APPROVED)
____________________

MR JUSTICE TURNER: On 26th October 2017 in the Crown Court at Leicester, the appellant was sentenced to five years' imprisonment in respect of one offence of conspiracy to supply a class A controlled drug, namely cocaine. The appellant, with the leave of the single judge, now seeks to persuade this court that this sentence was manifestly excessive.

The facts are straight forward and may be stated briefly. The conspiracy involved two other men, Luke Porter and James Wildey-Jacobs. The plan was for the appellant to store at his house nearly one kilogram of cocaine at 64 per cent purity, which Wildey-Jacobs had agreed to collect for onward supply.

On 30th September 2006 Wildey-Jacobs turned up at the appellant's home address and collected the drugs. He was stopped shortly thereafter by police officers and the drugs were found in his pocket. Two days later the appellant was arrested and made no comment during the course of his interview with the police. The appellant, however, entered a guilty plea at the first available opportunity before the court on a basis which was accepted by the prosecution and the court. In short the appellant accepted that he was warehousing the drugs as a favour to Porter and that his involvement ceased when Wildey-Jacobs came to collect them. He did not benefit financially from the transaction.

In his sentencing remarks the judge uncontroversially placed the level of harm under the Drug Offences Sentencing Guideline within Category 2, to take into account the weight of the cocaine involved. He further concluded that the appellant's role fell within but at the lower end of the range of significant category. He concluded that the appellant had known the nature and scale of the operation in which he was involved and had played an active part in it for financial advantage. We note in passing that the finding of an element of financial advantage is difficult, if not impossible, to reconcile with the basis of plea.

We take the view that the judge was entitled to infer at least that the applicant had some awareness and understanding of the scale of the operation in which he was involved and that this was sufficient even in the absence of any expectation of financial gain to justify his inclusion in the category of significant role. We note that within the lesser role category are those with "very little if any awareness or understanding of the scale of the operation" and consider the judge was justified in concluding that the appellant's knowledge of what was going on was greater than this. He had, after all, sufficiently trusted those playing more senior roles in the conspiracy to be left in sole possession of a large quantity of valuable drugs. The combination of significant role and Category 2 harm produces a starting point of eight years and a range falling between six-and-a-half years and 10 years' imprisonment. The judge concluded that after a trial the appropriate sentence would have been one of seven-and-a-half years. A discount of one-third was applied to reflect the appellant's guilty plea, giving a total of five years.

The appellant accepts that an aggravating feature is the relatively high purity of the cocaine which he had supplied. On the other hand, mitigating features included the fact that this was a one-off incident and that the appellant did not have relevant recent convictions. Furthermore, there was ample evidence before the court that the appellant was a family man demonstrating some aspects of positive good character, having for example been significantly involved in charity work. The genuineness of his remorse was accepted by the court.

We consider that the judge in applying the Guideline should have moved within the sentencing range towards the lowest end to reflect the fact that the appellant was only just within the category of significant role. Thereafter the balance of aggravating and mitigating features were such as to justify a further discount to five years and three months after a trial. Against this analysis we consider the judge's assessment of a seven-and-a-half year sentence, before allowing for the discount for guilty plea, was too high. Allowing the same level of discount of one-third as did the judge, brings the level of sentence down to three-and-a-half years' imprisonment and to this extent the appeal is allowed.

WordWave International Ltd trading as DTI hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

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