R v James Robert Morphew

On 16 September 2024 in the Crown Court at Maidstone, the appellant was convicted, after a trial, of two offences of conspiracy to supply a controlled drug: conspiracy to supply Class A, cocaine (count 1) and conspiracy to supply Class B, cannabis (count 2). On 17 September 2024, the trial judge (Ms Recorder Makanjuola) sentenced him to 9 years' imprisonment on count 1 with a concurrent sentence of 16 months on count 2. The appellant now appeals that sentence with leave of the Single Judge.

On 28 April 2020, police officers had been conducting a surveillance operation and had witnessed a drug exchange in an underground car park of a block of flats in Strood, Kent. The men involved in that exchange were the appellant's co-defendants, Ross Harland and Billy Peters, both of whom were arrested and charged. After the encrypted EncroChat platform was decoded and infiltrated in June 2020, police officers discovered that the appellant had been operating on EncroChat under the handle "Tigerpalm" and that he had arranged the transaction which the police had observed between Harland and Peters on 28 April 2020. Police officers obtained messages associated with the username "Tigerpalm". The messages demonstrated that the appellant had been involved in the supply of Class A (cocaine) and Class B (cannabis) drugs and also had been ostensibly involved in a further Class A drugs transaction predating the index offending and similar in nature to the exchange that had taken place on 28 April. The appellant's co-defendants (Harland and Peters) both subsequently pleaded guilty to conspiracy to supply cocaine and were sentenced on 18 February 2020. Each of them received a total sentence of 40 months' imprisonment.

The appellant was aged 39 at sentence. He had five convictions for 13 offences spanning the period 1 October 2002 to 6 July 2009. His relevant convictions included seven drugs offences. In her clear and logical sentencing remarks the recorder found that the appellant had a role that fell into the "very top end of significant" for the purposes of the relevant Sentencing Council Guideline. The prosecution had suggested that the appellant had a leading role but the Recorder determined against that although, as she pointed out there were "some elements of leading". She specifically noted that the appellant was higher up the chain than either of the co-defendants Harland or Peters. The recorder placed Harm squarely within category 2 in the guideline, taking account of the evidence which she had heard at trial of a previous cocaine exchange on 15 April in addition to the event on 28 April leading to the arrest of Harland and Peters. She went on to consider aggravating factors (to a limited extent previous drug-related convictions, also disposal of evidence and use of a sophisticated EncroChat device). She then moved to mitigating factors, noting the significant delay that had occurred to the progress of the case (some 4½ years to final trial) and the fact that the jury at the first trial had had to be discharged just as they were about to retire, such that the appellant had to undergo two full trials before finally being convicted. She also said that she would give credit for the fact that over the time since his arrest the appellant had committed no further offences. She applied a 6-month uplift to the sentence of 8 years 6 months on count 1 to reflect the further conspiracy in count 2, passing a concurrent sentence of 1 year 4 months on that count. The prosecution has initiated POCA proceedings which are underway.

Mr Radstone, for whose written and oral submissions we are grateful, challenges the sentence on three grounds. His principal point is that the recorder failed to take sufficient account of the exceptional background to the case and the delay in its coming finally to trial. His written grounds also relied on a disparity between the sentences passed in 2022 on Harland and Peters, comparing the 40 months which they received at that time to the 9 years total passed on this appellant. He says the role ascribed to this appellant was disproportionate when compared to those of his co-defendants and that this has led to an unfair disparity in the sentence. Lastly, the written grounds relied on a point that the recorder was wrong to elevate the sentence on count 1 to reflect the offending in count 2, although Mr Radstone did not pursue that point before us.

The delay between the appellant's arrest and his final trial was regrettably long and not his fault. For the first two years he was on bail under a qualifying curfew in respect of which the appropriate direction was made at sentence, reducing his time in custody by 257 days. In the 2 years following the abortive trial in 2022 the appellant was on bail with no curfew at all, the curfew having been removed. The recorder in sentencing specifically made allowance for the delay as a mitigating factor. We see no error in her approach.

Moving to disparity, we acknowledge the wide difference in 40 months passed on the co-defendants and 9 years passed on the appellant. However we do not believe that the difference is such as would cause right-thinking members of the public to think that there was something wrong with the administration of justice. Harland and Peters were both found to have held lesser roles which call for lower sentences in the Sentencing Council Guideline. Moreover, they both pleaded guilty at an early stage in proceedings entitling them to considerable discounts on those sentences. Even if, which we do not accept, the sentences passed in their cases were lenient, this court has several times pointed out that leniency to a co-defendant cannot serve to reduce an otherwise appropriate sentence passed on the defendant in question (see for instance R v Saliuka [2014] EWCA Crim 1907).

Finally, there can be no criticism of the recorder in structuring the sentences in the way she did, as Mr Radstone accepted. It was not wrong to pass a concurrent sentence on count 2 or to inflate the sentence on count 1 to reflect the additional offending in count 2. Mr Radstone's argument is really that 9 years was simply too much for this offending taking all the circumstances into account. We are unable to accept this. Mr Radstone accepts, as he must, that the recorder was entitled to place the offending within category 2 significant role in the guideline where there is a starting point of 8 years and a range of up to 10 years. She was entitled to find the aggravating features outweighed the mitigation. Whilst the final sentence of 9 years was severe, it was well within the guideline range. We cannot find that it was excessive. It follows that this appeal must be dismissed.