[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Broomes, R. v [2024] EWCA Crim 1747 (16 January 2024) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2024/1747.html Cite as: [2024] EWCA Crim 1747

[New search] [Printable PDF version] [Help]

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London WC2A 2LL
		16 January 2024

1. MR JUSTICE JAY: On 18 August 2023 at Croydon Crown Court before Mr Recorder King, Mr Christopher Broomes (the appellant) was sentenced following his guilty plea to a term of imprisonment of 25 months for the offence of possessing a class A drug with intent to supply (count 1), contrary to section 5(3) of the Misuse of Drugs Act 1971. He now appeals against sentence with the leave of the single judge.
2. The facts of this case were relatively straight forward. At around 15.30 on 15 March 2022 the appellant was stopped by police driving in Carshalton. While being searched the appellant dropped a small bag to the floor which contained 13 small wraps of cocaine and weighed 9 76 grams in total. He was also in possession of £40 in cash.
3. At his police interview the appellant admitted the cocaine was his but said that it was purchased with money pooled with a small number of friends for them to use together socially. He denied making any profit from the drugs. We have considered the terms of the appellant's interview with the benefit of submissions from Mr Johnston.
4. The written basis of plea was that this was a social supply in the sense that the drugs were for his own use and to "party" with friends. His case was that on the day in question he bought a quantity of 13 wraps of cocaine for £600. We draw the inference, taking into account the written basis of plea in conjunction with the interview, that the arrangements with the appellant's friends were of a loose and informal nature and that these were non-commercial supplies.
5. The appellant had also been charged with the offence of possession of criminal property (count 2). Over £7,000 was found at his room. He was acquitted of that offence in August 2023. The appellant points out that in his defence case statement filed in May 2022 he admitted his guilt in relation to the offence with which we are concerned and he pleaded guilty to it on 14 December 2022 on the basis we have summarised.
6. The appellant was aged 28 as at the date of sentence. He had eight convictions for 16 offences spanning the period March 2009 to March 2022. He had two previous convictions for possession of class B drugs. The appellant's most serious conviction was on 8 December 2016 for the offence of possession of a firearm with intent to cause fear of violence. He received an extended sentence of 10 years with a custodial term of six years and an extended licence period of four years. The appellant was recalled to prison following his arrest for the offences in question and we draw the inference that the main consideration here was count 2, the possession of criminal property.
7. The appellant is still in prison on his recall and, as counsel pointed out, subject to any period of being in custody on remand before his conviction in December 2016 his recall will not expire until 2026. The Parole Board may of course intervene in the interim.
8. The Recorder sentenced the appellant without the benefit of a pre-sentence report. We confirm that such report neither was, nor is, necessary.
9. After receiving submissions on the relevant Sentencing Council Guideline, the Recorder stated that he would treat this as a Category 3 case, lesser role, with a starting point of three years and a category range of two to four years. His analysis was that all supplies directly to users fell under Category 3. He accepted the appellant's account that these were social supplies and the Recorder had presided over the appellant's trial.
10. The Recorder took into account the appellant's personal mitigation, namely his drugs rehabilitation work in prison, and that in his estimation there had been about eight or nine months delay before he could be sentenced. The Recorder was looking at the period between December 2022 and August 2023. The Recorder's approach was to adjust the starting point in the guideline from three years to 33 months to reflect the delay and then by a further month to reflect the personal mitigation. Given that the guilty plea had been after the plea and trial preparation hearing, the overall sentence was 25 months. It seems that the deduction for credit for plea on the arithmetic was in the region of 22 per cent, although the Recorder intended to give 20 per cent.
11. The grounds of appeal are that the sentence was manifestly excessive because the case should have been placed in Category 4 not Category 3 and insufficient regard was given to the appellant's mitigation. Mr Johnston developed those grounds in a convincing oral argument. He submitted that the appellant's oral evidence must have been accepted by the jury given his acquittal on count 2. It was highly relevant to count 1. He also submitted that it is at least possible that the appellant would not have been recalled to prison had the facts as we now understand them to be known to the Offender Management Service. But his primary submission is that this case should have been placed within Category 4 because although there were supplies there was no element of selling directly to users for the purposes of the guideline.
12. We have carefully considered these submissions. The first issue to determine is the offence category. Clearly the appellant's was a lesser role, whatever the category of harm. If for the purposes of the guideline this were "selling directly to users" then Category 3 would apply and the court would then have to make an adjustment from the starting point in the guideline to reflect the quantity of drugs in the particular case and also for the fact that this was a social supply without the commercial element. If however Category 4 applied, then the starting point in the guideline would have been 18 months. It may be seen that there is not an overlap between these two categories and therefore the court has to decide which of the two is applicable in the present case.
13. The issue is whether the terminology in the guideline 'selling directly to users' is limited to cases of street dealing or at least whether it is capable of applying to the present case. We were taken to relevant parts of the guideline in Mr Johnston's written submissions in the advice on appeal. We were referred to a considerable number of authorities, most of which were not of any particular assistance. In our judgment the case of R v Ghalghal [2016] EWCA Crim 140 is the closest in point. In that case this court treated a purely social supply as falling under Category 4 of the guideline. The facts of that case were far more straightforward than those of the present case, in that two drug addicts pooled their resources to acquire a small quantity of drugs. On those facts it could be argued in line with the case of R v McKenzie and others [2012] EWCA Crim 155 that there was not a supply from drug addict A to addict B at all. However the analysis of this court, Edis J (as he then was) giving the judgment of the court, went wider. His analysis was that supply to another person in circumstances where resources were pooled did not amount to selling directly to users. Instead, there was a bare supply which was sufficient and appropriate to place the case within Category 4 and not Category 3. It may be seen therefore that although the facts of R v Ghalghal were simpler than those of the present case, it is authority for a wider principle.
14. The issue which arises in this case is not infrequent and it is therefore of some importance. Ultimately, we have been persuaded by Mr Johnston's submissions that the correct location for this case is Category 4 and not Category 3. It was not a case of selling by this appellant to his friends; it was a case where resources were pooled. There was a supply to his friends but Category 3 was not the correct habitat for the present situation.
15. The starting point for a Category 4 case is 18 months, in relation to a slightly higher amount of class A drugs with which the present case is concerned. We have to consider the extent to which we should move this case within the category range to reflect its particular features. We do not consider that the delay in this case really adds to the appellant's other personal mitigation. There were eight to nine months delay between the appellant's guilty plea and his acquittal on the charge of possessing criminal property. He had, as we have said, been recalled to prison for the firearms offence rather than being held on remand and the effect of section 225 of the Criminal Justice Act 2003 is that his sentence for the drugs offence commenced on the day on which it was passed. Had he been sentenced in December 2022 his sentence would therefore have begun then. However, the fact remains that the appellant is still in custody for the firearms offence and it is unclear when the Parole Board will be considering it. It could be said that there is a high chance that the appellant will remain in custody on his recall in the light of the firearms offence, whatever happens in connection with today's appeal.
16. It follows that it is difficult to say that the delay makes any difference to the outcome. That is not to say however that the appellant is not entitled from a full and reasoned judgment from us as to the gravity of his offending in connection with count 1, whether or not that will assist him in expediting his case before the Parole Board in due course.
17. Looking more generally at the aggravating and mitigating features of this case, there is some personal mitigation as the Recorder found and the appellant received credit for it. However, this case was aggravated by the appellant's previous convictions, in particular the firearms offence, and we cannot regard that as irrelevant. Overall we are satisfied that the aggravating and mitigatory features cancel each other out and the correct approach is to adopt the starting point of 18 months in the guideline. That falls to be reduced by the appellant's guilty plea. The relevant date for these purposes is the date on which the plea was given, namely in December 2022. On any view it was after the date of the plea and trial preparation hearing. Giving the appellant approximately 20 per cent credit for his guilty plea is in our judgment entirely fair and reasonable. 20 per cent of 18 months is slightly over three-and-a-half months but we will round the figure down in the appellant's favour. We end up with a total figure after credit for plea of 14 months' imprisonment.
18. It follows that to that extent this appeal is allowed. The sentence of 25 months' imprisonment is quashed and for it is substituted on count 1 a sentence of 14 months' imprisonment.