R v Stephen Adetoyi

The appellant appeals with leave against a custodial term of four years in relation to two counts of being concerned in the supply of a controlled drug of class A (cocaine) to another, contrary to section 4(3)(b) of the Misuse of Drugs Act.

Count 1 concerns the operation of a County Drugs Line called "Diego" selling cocaine into Salisbury between 9 January to 4 April 2024. The appellant was charged along with four co-defendants, Jonathan Turford, Jack Roche, Gerard Mulimbi and Jake Edmunds. Police analysis of their phones established the appellant and his co-defendants had all been in contact with each other to arrange the drug deals. Bulk messages had been sent from the Diego line to drug users advertising the sale of cocaine.

The appellant was identified by police as a controller of the Diego line. The phone analysis showed he had travelled with the drug line to Southampton, Melksham and Swindon.

Count 2 concerned the appellant alone and involved a separate County Drugs Line named the Troy line which sold drugs into the Avon and Somerset area between 4 and 10 April 2024.

The appellant was first arrested in relation to the Troy line (count 2) when he was observed by police to be moving between two addresses in the same street. On arrest 17 bags of cocaine were found in his possession. At his property officers seized drugs paraphernalia including snap seal bags, digital scales and a small bag of herbal cannabis. The street value of the drugs found was £12,000. Subsequent analysis of his phone identified the Diego line which was to form the subject of count 1.

In relation to count 2, the Troy line, the appellant pleaded guilty on 8 May 2024 at a plea and trial preparation hearing on the basis of a plea which was not disputed by the prosecution and is as follows.

The appellant did not plead guilty to count 1, the Diego line, at the plea and trial preparation hearing on 8 May 2024 because there were indications that the prosecution might discontinue proceedings. In the event this appeared to be a misunderstanding on the part of the prosecution and defence and the appellant subsequently pleaded guilty to count 1 on 20 September 2024 on the basis of plea that he was only involved in the Diego line from 4 to 8 March 2024, which was not disputed by the prosecution.

The judge opened his sentencing remarks by explaining he was sentencing the co-defendants for their parts in a mid-range county line operation which formed the subject of count 1 but in the case of the appellant he had to sentence him for two operations because there were two separate phones involved. The judge went on to say that whilst the co-defendants all played different parts in the organisation in relation to count 1, the part that each one played was essential to the continued success of the distribution network. The prosecution had not sought to dispute the basis of plea for each defendant. The judge awarded the appellant 20 per cent credit for plea. He said that the appellant controlled the Diego drugs line and was in possession of 17 bags of cocaine on arrest. Snap seal bags, digital scales and a small bag of herbal cannabis were found at his property. The phone evidence indicated the appellant was travelling to Southampton with the drugs to Melksham in Wiltshire and to Swindon. In this regard we pause to observe that the prosecution opening for sentence referred to the police analysis of a witness statement from a relevant officer which gave further details as follows:

The judge’s sentencing remarks went on to set out the appellant's previous convictions for drugs offending, in particular his conviction in 2021 for being concerned in the supply of heroin and cocaine for which he had been sentenced to five years' imprisonment in February 2021. The judge observed in this regard that the appellant would have been on licence when he committed the present offences. The judge said there was very little disagreement between the prosecution and defence as to where each defendant fell within the Sentencing Council Guidelines and he accepted the assessment by the prosecution as to roles.

Addressing the appellant, he then said as follows:

The transcript of the hearing records that at the conclusion of the judge’s sentencing remarks the appellant's counsel asked for a disposal on count 2 to which the judge responded by referring to four years on count 1 plus one year consecutive in relation to count 2, which was to be reduced in relation to his plea to four years.

The transcript then records the Clerk of the Court seeking clarification that the sentence on count 1 had been reduced to three years. The judge confirmed it had with the result that on count 1 the sentence was recorded as three years and on count 2 the sentence was recorded as one year to be served consecutively.

The written grounds of appeal are as follows:

In oral submissions before us today, Mr Lee has emphasised his central point is that no regard was had by the judge to the basis of plea for the Troy line which substantially serves to reduce culpability in both counts. In particular in relation to the Troy line it ought to reduce the appellant’s role to a lesser role. He also submits that a significant role was too great a role in relation to the Diego line. The result was too high a starting point and a manifestly excessive sentence. He also explained that whilst detained for the first set of offending (the Troy line) the appellant sought to transfer out of the prison he was detained in because of threats from those running the Troy line and those threats were made and continued on his release into Lewisham which led to the basis of his continued involvement in the Troy line. Reference is also made to delay in the sentencing hearing.

The essential question for this court is whether a sentence of four years' custody, allowing for pleas, to the two offences of operating a drugs line is manifestly excessive. The time involved in operating both drug lines was relatively short, and it is therefore appropriate to consider them together. In our view, this was the approach adopted by the judge in his sentencing remarks albeit we accept that a degree of confusion appears to have crept into the proceedings at the conclusion of the sentencing remarks. The judge was asked about count 2 and indicated the sentence was to be consecutive on each count.

We accept that the judge did not refer to the basis of plea for either line. However whilst the basis of plea says the appellant was pressurised into operating the Troy line again in order to repay a debt from hi previous time of operating the line, nothing is said about him being pressurised into operating the Diego line. Accordingly, despite the efforts of Mr Lee to persuade us that the Diego line attracted a lesser role we are of the view that the judge was entitled to treat the appellant's role as significant in relation to the Diego line given he was controlling the line albeit for a short period of time.

Although not a point pursued in oral submissions, we do not accept the submission in the written grounds that Category 4 harm is appropriate. The drugs were being sold directly to users which places the offending in Category 3. The suggestion that the appellant himself may not have been selling directly to users does not alter the fact that the operation as a whole were selling directly to users.

We are prepared to accept that the appellant should have been afforded 25 per cent credit for his pleas. He pleaded guilty to count 2 at the first opportunity in the Crown Court at the plea and trial preparation hearing on 8 May 2024. As the DCS side bar records, he did not plead to count 1 due to a suggestion, which later turned out to be a misunderstanding, that the prosecution against him on count 1 might be discontinued.

We do not however accept counsel's submission that the appellant is entitled to 33 per cent credit in relation to a plea at the plea and trial preparation hearing. Counsel did not advance this submission at the sentencing hearing and Counsel is recorded on the transcript of the hearing as agreeing with credit of 25 per cent for the relevant count. In any event the relevant Sentencing Council Guideline and R v Plaku [2021] EWCA Crim 568 permits a reduction of one-third where a guilty plea is indicated at the first stage of the proceedings. We have seen no Better Case Management form to indicate what happened at the Magistrates' Court. As said in Plaku it is essential that the Better case Management form is uploaded to the Digital Case System so there is a clear record of what, if any, indication is given in the lower court.

We do not consider that a sentence of 4 years for both counts was manifestly excessive. It is instructive to consider the Diego line on its own. A Level 3 significant role in the guideline has a starting point of four-and-a-half years with a range of up to seven years. The aggravating features included the appellant's previous offending and the fact that he was on licence for a sentence imposed for operating the Troy line previously. Mitigation in relation to the Diego line is negligible. Even assuming credit for plea is increased to 25 per cent, this would amount to a sentence after trial for operating the Diego line of five years and four months which was well within the guideline range. Whether or not the basis of plea for the Troy line was taken into account by the judge does not affect the sentencing exercise for the Diego line. Moreover, the sentence for both counts was only 10 months higher than the starting point for a single offence. There was no material delay in sentencing.

The record sheet and the monetary order records that a surcharge was made in the sum of £228. However, it appears from the sentencing remarks that the judge did not impose a surcharge although he had a duty to do so pursuant to section 42 of the Sentencing Act 2020. Where the surcharge has not been ordered by the judge but added administratively, this court has held that the order has not been imposed lawfully. In R v Jones [2018] EWCA Crim 2994 the court directed the Crown Court Record be corrected. This is on the basis that notwithstanding the order was mandatory, the Court of Appeal held that it was precluded by section 11(3) of the Criminal Appeal Act 1968 in correcting the position in imposing the surcharge. Accordingly we direct that the record be corrected to record that a surcharge has not been imposed. To this limited extent the appeal succeeds.