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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Shucksmith, R. v [2015] EWCA Crim 843 (30 March 2015) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2015/843.html Cite as: [2015] EWCA Crim 843

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		30 March 2015

LORD JUSTICE JACKSON:

1. This is an appeal against sentence.
2. The facts giving rise to this litigation are as follows. The appellant is a 25 year old man with a bad criminal record. That record spans all manner of offences involving violence, drugs and theft.
3. On 6th January 2014 the police were looking for a BMW car, which had been involved in a collision. They found the car parked in King Street, Margate. The appellant was standing by the driver's door and a woman was standing by the passenger's door. The police questioned the appellant who promptly gave a false name. They then took the car keys from the appellant and searched the vehicle. Inside they found a bag containing herbal cannabis and a wooden handled machete. The handle was protruding upwards next to the driver's seat. This meant that the machete could be rapidly and easily picked up and put to use.
4. The police arrested the appellant and took him to Margate Police Station. The appellant had a small black wrap concealed in his underwear and a larger blue wrap clenched between his buttocks. The appellant attempted to discard these items unobtrusively but police officers foiled those attempts. The two wraps contained a total of 23 grams of heroin.
5. The appellant was charged with two offences. Count 1 on the indictment was possessing a controlled drug of Class A with intent to supply. Count 2 was having an article with a blade or point. The appellant pleaded guilty to both offences at Canterbury Crown Court at a preliminary hearing on 13th October 2014. There was not time to pass sentence that day. On 16th October 2014 the appellant appeared at the same crown court for sentence before His Honour Judge O'Mahoney.
6. The judge reviewed the appellant's criminal record. He noted that on two occasions the appellant had been convicted of offences involving Class A drugs. The first of those occasions was 13th October 2004 (two offences of possession with intent to supply). The second occasion was 13th August 2010 (three offences of supplying cocaine and heroin). There was also a subsequent class A drugs offence which was committed after the date of the offence with which we are concerned. As we have said, the appellant had a bad record with a number of other offences beyond the realm of drugs. The judge correctly noted that the minimum sentence provisions set out in section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 applied. Those provisions required a minimum sentence of seven years imprisonment. Section 144 of the Criminal Justice Act 2003 provides that the maximum credit which can be given for a plea of guilty in that circumstance is 20 per cent.
7. The judge sentenced the appellant to a total of seven years' imprisonment on count 1 and nine months' imprisonment on count 2. The sentence on count 2 was concurrent. In arriving at his sentence the judge referred to the sentencing guidelines. He noted that this case fell within category 3 as set out on page 12 of the guidelines and that the appellant's role was significant. The category range for such an offence is between three and a half years and seven years' imprisonment. The judge said he was giving to the appellant full credit for his plea. He also was taking into account the fact that the machete offence was being dealt with by means of a concurrent sentence.
8. The appellant is aggrieved by the length of sentence imposed and he appeals to the Court of Appeal.
9. The grounds of appeal are very concisely set out in writing by the appellant's counsel. Essentially the argument is that the judge must have taken too high a starting point in order to arrive at a total sentence of seven years' imprisonment after giving full credit for the plea of guilty.
10. It seems to us that some of the reasoning set out in the sentencing remarks is problematic. We have come to the conclusion that there is force in the grounds of appeal. Mr Benjamin, who appears for the appellant, submits that the proper sentence for this drugs offence, having regard to the circumstances, would be a term of seven years' imprisonment. That is the very top of the range for category 3 significant role as set out in the guidelines. We agree. Mr Benjamin submits that the possession of the machete cannot increase the starting point to the extent that is implicit in the judge' reasoning. We note what the judge said about the machete offence.
11. We have come to the conclusion that if the totality of the appellant's offending is to be reflected in the sentence on count 1, then the total sentence on count 1 would be eight years before taking into account the plea of guilty. There would then be a concurrent sentence of nine months on count 2. If one then gives credit for the plea of guilty, the total sentence of eight years would be reduced to 64 months by our calculations.
12. At this point, as Mr Benjamin has pointed out, it is necessary to have regard to the case of Gray [2007] EWCA Crim 979; [2007] 2 CrAppR (S) 78. The Court of Appeal in Gray said that the correct approach was to work out the proper sentence for the appellant's offending after giving credit for the plea. If one arrived at a term which was less than 80 per cent of the specified minimum term, one should then increase the sentence to 80 per cent of the minimum term. Following the guidance in Gray as set out at paragraph 10 of that judgment, we shall increase the sentence of 64 months to 68 months in order to comply with the statutory provisions concerning minimum sentence. In the result therefore, we allow this appeal, we reduce the sentence on count 1 to five years eight months. We leave the concurrent sentence of nine months' imprisonment in place. As a result the appellant's total term of imprisonment is now five years and eight months.