Neutral Citation Number: [2025] EWCA Crim 1479 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT LIVERPOOL His Honour Judge Flewitt KC 06A20179921 | Case No: 202403995 A2 |
Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
LORD JUSTICE STUART-SMITH
MRS JUSTICE TIPPLES
and
HER HONOUR JUDGE LEIGH
(Sitting as a Judge of the CACD)
_________
Between:
REX
-and-
KEITH JOHN BRETHERTON
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NON-COUNSEL APPLICATION
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Approved Judgment
Lord Justice Stuart-Smith:
This is a renewed application for leave to appeal following refusal by the Single Judge.
On 18 October 2024, before HHJ Flewitt KC in the Crown Court at Liverpool, the applicant (who was then aged 50) was sentenced as follows:
On count 6 of the indictment, which was an offence of conspiracy to commit misconduct in public office, having pleaded guilty, he was sentenced to 2 years and 6 months' imprisonment.
On count 14, which was an offence of possessing a controlled drug of Class A with intent, the drug being cocaine, upon his plea of guilty he was sentenced to 6 years' imprisonment consecutive.
On count 15, which was an offence of possessing a controlled drug of Class B with intent, the controlled drug being cannabis, on his plea of guilty to the lesser offence of possessing a controlled drug of Class B there was no separate penalty. The total sentence was therefore 8 years and 6 months' imprisonment. Ancillary orders were also made.
The applicant had 22 convictions for 61 offences committed between 15 September 1987 and 2 February 2022. These offences included possessing a controlled drug of Class B with intent to supply, for which he received a community punishment order in July 2022 and other offences of simple possession of controlled drugs, most recently possession of a controlled drug of Class A, for which he was fined in February 2022. As a result of his offending the subject of the present indictment he had lost his employment, his family and his friends and would lose his accommodation.
The background facts are set out in the Court of Appeal Office Note and do not need to be rehearsed in any detail here. They concerned the applicant's drug dealing and involvement with a corrupt police officer called Talbot. In briefest outline, count 6 involved a conspiracy to try to track down an individual who owed the applicant money from a drugs deal, so that the applicant could recover the debt. Talbot carried out searches on police systems, passing information to the applicant over a period of about 18 months, which the applicant then followed up by going to try to find the debtor using the information Talbot had provided. The applicant pleaded guilty shortly before the trial and was afforded a 15 per cent reduction from the sentence of 3 years that would have been passed if convicted after a trial. By that route the sentencing judge arrived at the sentence of 2 years 6 months that he imposed on counts 6.
Counts 14 and 15 arose out of a search of the applicant's home in June 2021. The police seized 85 grams of cannabis (that was the subject of count 15) and just shy of 1.3 kilograms of cocaine (that was the subject of count 14). The applicant's fingerprints were found on the packaging of the cocaine. Mobile phones were found which contained drug dealing messages and cutting agent and cash were also found. The quantity of cocaine placed count 14 into category 2. The judge treated the applicant as having a significant role but towards the upper end of the range. That implied a starting point of 8 years with a category range of 6½ to 10 years' imprisonment. The judge stated that the appropriate sentence after a trial would have been 9 years, he then reduced that by 12 months for totality and then by a further 25 per cent of the applicant's plea of guilty leading to the sentence of 6 years that he imposed on count 14. That was ordered to run consecutively to the sentence on count 6. As we have said, there was no separate penalty on count 15.
The applicant wishes to appeal on the grounds that the sentences passed by the judge gave inadequate weight to the fact that the applicant played a secondary role in relation to count 6 and failed fully to reflect the totality principle.
Refusing leave, the Single Judge said:
"I have considered the papers in your case and your grounds of appeal.
It is rightly accepted that consecutive sentences were justified. The real issue here is totality.
The applicant may not initially have corrupted Talbot but he thereafter knowingly exploited, for his own gain, Talbot’s corruption as a police officer. As to the amount of Class A drugs involved, that was 1.29kg, of cocaine. There were pleas at different stages.
There was no error in the Judge’s categorisation for sentencing guideline purposes or otherwise. The Judge also expressly made a reduction for totality (see p.14G of transcript). It is argued that the deduction was too little; but in my view this was very much within the margin of appreciation to be afforded to the Judge. Overall, a total sentence of 8½ years’ imprisonment cannot, in my view, be said to be excessive for this very serious offending. I therefore refuse leave to appeal."
We agree. Specifically on count 6 the judge reflected the different roles of the applicant and Talbot by taking a starting point of 4½ years for Talbot and 3 years for the applicant. The final sentences on count 6 were closer to each other because Talbot pleaded earlier and was entitled to full one-third reduction whereas the applicant pleaded later and was correctly afforded only a 15 per cent reduction of account of that later plea.
On count 14, the judge was right to say it was a category 2 case based on the weight of the seized cocaine. He was, if anything, generous to the applicant in treating him as having only a significant role albeit at the top of the range. He reflected the principle of totality by reducing the sentence on count 14 by 12 months for totality before applying the reduction for his guilty plea and imposing no separate penalty on count 15. There is no merit in this proposed appeal. The renewed application is dismissed.