Eldridge, R v

MR JUSTICE PHILLIPS: On 15 December 2016, in the Central Criminal Court before Mr Recorder Fortune and a jury, the appellant was convicted on a single count of conspiracy to supply a Class B drug, namely cannabis. On 27 January 2017 the appellant, now aged 16, was sentenced to 12 years' imprisonment. He now appeals that sentence with leave of the single judge, represented today by Mr Taylor of counsel who was also trial counsel. The Crown is represented today by Mr Probert-Wood who was also counsel at trial.

The facts of the offence are these. On the evening of 8 September 2015 a large white van was seen parked close to a garage of a residential house in Bromley, Kent, occupied by one Eddie Allen. The garage had been rented by him to the appellant for storage purposes. Early the next morning police officers forced their way into the property and found in the garage 970 kilograms of cannabis resin with hessian tape and plastic wrappings. The drugs had a wholesale value of £680,000 and £1.7 million and a potential street value of £2.77 million. A glove was found close to the cannabis and on which the appellant's DNA was found.

Both the appellant and Allen were charged with being parties to the conspiracy to supply the cannabis. In the course of the trial Allen, but not the Crown, adduced bad character evidence of the appellant's alleged involvement in a delivery of 95 kilograms of cannabis in March 2015 and also his meeting another man, alleged to have been close to or involved in the importation in 2009 of 100 kilograms of cannabis, though that man had not been prosecuted.

That evidence was not part of the Crown's case against the appellant. The Crown did adduce evidence that the appellant had been convicted in 2000 of possession of cannabis with intent to supply, for which he had received a community penalty.

In the event, whilst the appellant was convicted, Allen was acquitted.

The learned Recorder, in very lengthy sentencing remarks setting out details of the conspiracy, rightly recognised that the quantity of cannabis involved was several times the indicative amount of 200 kilograms in category 1 of the relevant Sentencing Guidelines. As to the appellant's role, the Recorder referred to the evidence adduced by Allen at trial as being adduced by the Crown/Allen and appeared to treat it as part of the evidence in the case proved against the appellant. The Recorder rejected the joint approach of the Crown and Mr Taylor that the appellant's role was, at the most, significant (the appellant's case being that it was in fact a lesser role) and found that the appellant played a leading role. He so found notwithstanding detailed evidence from a consultant psychologist that the appellant is a man of borderline intelligence and cognitive skills and is therefore vulnerable and likely to have been exploited, in particular having a reading age in the region of about 8 or 9 years old.

The Recorder therefore placed the offence in category 1, with a leading role, providing for a starting point of 8 years and a range of up to 10. Having regard to the volume of drugs, the fact that it was a conspiracy and the aggravation provided by the appellant's previous conviction, the Recorder increased the sentence above the range to 12 years' imprisonment. He declined to regard the appellant's significant family responsibilities and psychological issues as providing any significant mitigation.

The single judge identified the apparent error in taking into account evidence which was not advanced against the appellant, being outside the scope of the indictment and involving persons not named in it, and which was not admissible against the appellant and in any event denied. Both Mr Taylor and the Crown confirmed that that analysis is correct.

Mr Taylor, both in writing and confirmed orally today, submits that the judge further erred in placing the appellant in a leading role category and imposed a manifestly excessive sentence.

We agree. The admissible evidence of the appellant's role was limited to that relating to the occasion of the 8/9 September 2015 and relates to the storage of the huge quantity of drugs. In the light of the evidence from the psychologist, we are satisfied that the appellant's role could be classified as "significant", but it cannot be described as "lesser". It is plain that the appellant must have been aware of the scope of operation and was performing, to some extent, an operational role for reward.

The starting point, under the guidelines for a "significant" role under category 1 is 5 years and 6 months with range of 5 to 7 years. There must be upwards movement from that starting point to reflect the quantity of the drugs and the appellant's previous conviction. But it must be mitigated to some extent by what we understand of his family circumstances and the issues set out in the psychologist's report.

In all the circumstances we consider that the proper sentence is one of 6 years' imprisonment. We consider it is plain that something went seriously wrong with this sentencing exercise. We therefore quash the sentence of 12 years and replace it with one of 6 years. To that extent this appeal is allowed.