Wilson, R. v

MR JUSTICE SWEENEY: This is an appeal against sentence by leave of the single

On 27 January 2017, in the Crown Court at Swindon, the appellant, who is now aged 22, pleaded guilty to possession of crack cocaine with intent to supply (Count 1) and to possession of heroin with intent to supply (Count 2). On 28 July 2017, in the same court, he was sentenced by Mr Recorder Bebb QC to 6 years' imprisonment on each count

The sole ground of appeal is that the sentence was manifestly excessive, as it was wrong in principle for the appellant to be deprived of all credit for his early guilty plea in

The facts, in short, are these. In August 2015, in London, the appellant was concerned in the possession of heroin with intent to supply and in facilitating the acquisition or possession of criminal property. He was arrested for those offences and then granted bail

On 18 February 2016, whilst still on bail, the appellant hired a car in London and subsequently travelled to Swindon in order to supply drugs there. He was accompanied by his co-accused, a man called Obasi. In passing sentence, the Recorder concluded that they were in a team and had taken drugs and drug dealing equipment with them from

On 7 March 2016 the appellant failed to attend the Blackfriars Crown Court in respect of

On 14 March 2016 police officers saw the appellant leave the house in Swindon and get into the driver's seat of the hired car. Unbeknown to the officers, the appellant had with him a white package which contained 16 wraps of cocaine weighing a total of 1.66 grams at 85% purity and 16 wraps of heroin weighing a total of 1.7 grams at 54% purity. The

When the officers tried to stop the car they then saw that the appellant had the package and indeed that he appeared to be trying to swallow it. At all events the appellant managed to drive off and unseen to jettison the package out of one of the car's windows.

The appellant was initially taken to hospital as it was feared he had swallowed the package. However, he was later taken to a police station and eventually bailed, as it was clearly not realised that at that time that he was wanted at Blackfriars. In the meanwhile, police officers had entered the house and found and arrested Obasi there. They had also

After the appellant had been released on bail he was observed to go by taxi to the area

On 12 July 2017 both the appellant and Obasi failed to answer bail at the Swindon police station.

However, the appellant was later arrested, and on 31 August 2016 in the Crown Court at Blackfriars, for the two London offences committed in August 2015, and for the failure to

On 16 November 2016, whilst serving that sentence, the appellant was interviewed in relation to the instant offences but made no comment. However, as we have already touched on, the appellant pleaded guilty to those offences on 27 January 2017. Obasi however pleaded not guilty and in the summer of 2017 was tried before Mr Recorder Bebb QC in the Crown Court at Swindon. The appellant gave evidence on Obasi's

When he sentenced the appellant and Obasi on 28 July 2017 the Recorder observed that the appellant had given lying evidence during Obasi's trial - in an attempt to secure the acquittal of his friend. The Recorder went on to say that he had no doubt that the appellant and Obasi were reasonably accomplished street dealers in Class A drugs and had come from London as a team to deal on the streets of Swindon bringing, as we have touched on already, drugs and drug supplying equipment in a form of “cuckoo-ing”. They had, said the Recorder, a dealer's phone and they were looking to make a substantial

The Recorder went on to indicate that, but for the fact that the appellant had come to court in Obasi's trial and given a false account, he would have given full discount for the appellant's pleas. However, as the appellant had given false evidence, said the Recorder, he had foregone his entitlement to any discount for plea at all.

Albeit not relied on in mitigation, the Recorder also made clear that he rejected the appellant's evidence in Obasi's trial to the effect that he had come down to Swindon to see some girls and had only begun dealing after meeting someone in Swindon. Both the appellant and Obasi, the Recorder concluded, were street dealers in a significant role and under the relevant guideline, therefore subject to a starting point of four-and-a-half years

The aggravating features in relation to the appellant were that the case involved “cuckoo-ing”, targeting vulnerable individuals, that he had been on bail at the time and

In Obasi's case, the aggravating features were his previous convictions and the “cuckoo-ing”. The total sentence on Obasi, who also fell to be dealt with for another

As to the appellant, the Recorder made clear, towards the end of his remarks, that he could have imposed a sentence that was consecutive to the earlier sentences imposed in the Blackfriars Crown Court in August 2016, but that given the appellant's age and the principle of totality, he had decided that if he did so, the sentence would be too long and

We observe that there is a line of authority including R v Lawless [1998] 2 Cr App R(S)

Mr Grayson, on the appellant's behalf, submits, in effect, that the appellant's case comes firmly within the first category. With that, we agree. Using the Recorder’s figures, that

But that, in our view, is not the end of the matter. That is because the Recorder fell into further significant error in failing to make the sentence consecutive – which, albeit reduced to respect the principal of totality, is plainly what it should have been. We cannot make it so now, because that would risk imposing a more severe sentence upon the appellant than that which he is already facing. However, and albeit inadvertently, the sentence imposed by the Recorder does result in an overall sentence that is within the appropriate range, whereas if we were to allow the appeal the resulting overall sentence would clearly be below the appropriate range. Accordingly, in our view, it is not appropriate for us to reduce the sentence as to do so would result in an outcome which,

Therefore, in the unusual circumstances of this case, and whilst it is correct that the Recorder should not have withheld discount for plea for the reason that he gave, the