R v David Ubido

MRS JUSTICE CUTTS: On 13 June 2025 the appellant pleaded guilty before Uxbridge Magistrates' Court to an offence of being concerned in the fraudulent evasion of a prohibition on the importation of a controlled drug of class B, that is herbal cannabis, contrary to section 170(2) of the Customs and Excise Management Act 1979. He was committed to the Crown Court for sentence.

On 10 July in the Crown Court at Isleworth the appellant was sentenced to 18 months' imprisonment. He appeals that sentence with the leave of the single judge.

The appeal was initially listed before this court differently constituted on 22 October 2025. The Full Court adjourned the hearing of the appeal for the preparation of a psychiatric report which has been obtained and which we have read.

The offence occurred on 11 June 2025 when the appellant arrived at Terminal 4 at Heathrow Airport having flown from Bangkok in Thailand via Shanghai in China. He confirmed to Border officials when asked that the two black suitcases he had with him belonged to him, that he had packed them himself, was fully aware of their contents, was not carrying anything for anyone else and was aware of the prohibition on the importation of controlled drugs into the United Kingdom. On inspection the suitcases were found both to contain vacuum-sealed packages of what was later found to be 31.66 kilograms of herbal cannabis. The appellant was arrested. He made no comment to questions asked of him in interview. The estimated street value of the drugs was £949,920. The prosecution case was that the appellant was a courier, having no influence above him in the chain.

The appellant is now aged 35 years. He had eight previous convictions for 12 offences spanning October 2006 to May 2018. These included convictions in 2010 and 2016 for possession of a controlled drug of class A for which he was conditionally discharged and fined respectively.

At the sentencing hearing, Mr McKee who represents the appellant today, as he did at that hearing, applied for an adjournment for the preparation of a pre-sentence report on the basis that a suspended sentence of imprisonment may have been the appropriate sentence on all the facts of the case. In support of that application he indicated that the appellant had what he described as "mental health issues", had seen psychiatrists over the last year and had been trying to engage with mental health services in prison. Mr McKee further relied on the appellant's employment history both in and out of custody, the lack of like offending on his record and the ill-health of his father in support of his contention that there was a realistic prospect of rehabilitation in the community.

The Recorder did not accede to the request for a pre-sentence report and proceeded to sentence the appellant. In her sentencing remarks she observed that on his own case the appellant had made a deliberate decision to import the cannabis at the request of another for financial reward. She inferred that must have been significant in order to persuade the appellant to bring nearly £1 million worth of cannabis into the country. She accepted that he was a courier, as opposed to playing a leading role within the operation. The Recorder further expressly accepted that the appellant may have some mental health difficulties, although she had seen, she said, no formal evidence of it. She said that while she also took account of his personal mitigation, she could not get away from the fact that the appellant had imported a large quantity of drugs for no reason but profit and greed.

Observing that the categories within the relevant sentencing guideline were not precise, the Recorder placed the offence between harm categories 2 and 3. She found aspects of lesser role in the appellant being a courier of drugs and of significant role by virtue of the reward he was no doubt to receive. Taking all those factors into account the Recorder reached a notional sentence after trial of two-and-a-half years' imprisonment. She applied a downward adjustment of three months to reflect the appellant's personal mitigation and afforded credit of one-third to reflect his early guilty plea, to come to the term of 18 months' imprisonment imposed.

The Recorder said that she had carefully considered the matters included in the imposition guideline to decide whether she could suspend that sentence. She determined that there were no features which would indicate that to be the proper course given the gravity of the offending and its circumstances. The only proper sentence she said could be one of immediate custody.

Reports have been obtained on the appellant since his sentence for this matter. At the request of the single judge a pre-sentence report was prepared. The appellant told the author of that report that he had travelled to Thailand to complete martial arts courses having experienced loss of employment, health problems and relationship issues in the United Kingdom. He experienced financial issues there and at the request of another agreed to bring the cases with cannabis into the United Kingdom for payment of £5,000. He was partially paid in advance which paid for his flight back. The author opined that the appellant was struggling with his emotional wellbeing, as well as being motivated by money in the commission of the offence. The report details the progress that the appellant has made in custody, including undertaking courses, working in the bakery and engaging with mental health services within the prison. The author considered that he had a positive attitude towards addressing the areas that are linked to the risk of re-offending, including his mental health issues, and was suitable for requirements such as unpaid work and rehabilitation activity.

In a detailed report dated 19/11/2025, Dr Collins, a forensic psychiatrist, concludes that the appellant has a recurrent depressive illness with mild to moderate symptoms, significantly worsened by his harmful use of illicit substances, particularly cocaine. He also meets the diagnostic criteria for a moderate mixed personality disorder with features of negative affectivity, dissociality, disinhibition and borderline pattern. She observes that this combination of depression, personality disorder and drug use is common particularly in the prison population and childhood trauma is likely to have played a significant role in the appellant developing these conditions. The appellant was not found to have a psychotic illness nor does he have bipolar.

Dr Collins considered the appellant's mental state at the time of the offence. She records that he was not suffering from depression in Thailand nor was he using illicit drugs. He described clearly thinking through his options before deciding to take part in the offence. In her opinion his personality disorder did not detract from his ability to consider the outcome he desired to achieve and to decide to take action to achieve it.

The appellant relies on two grounds in support of his contention that the sentence imposed upon him was manifestly excessive. First, he contends that the Recorder failed to properly address the criteria as to whether the term of imprisonment imposed could and should have been suspended. This was compounded, it is said, by her failure to obtain at least a pre-sentence report. It is submitted that had the Recorder approached the question of suspension appropriately, she should and would have suspended the sentence of imprisonment imposed and that is particularly so given the appellant's mental health difficulties.

Second, it is submitted that the sentence of imprisonment imposed was itself too long. Mr McKee specifically submits that the appellant's role fell more within the lesser category than the significant category and in his submission the sentence should have fallen towards the lower end of Category 3 lesser role.

Mr McKee is further critical of Dr Collins' conclusions in her report which he submits are inconsistent with other aspects of it. He submits that the appellant's culpability was clearly reduced at the time of the offending by reason of the fact that he has been troubled by voices, negative thoughts, low self-esteem and unhelpful fixations for a significant period of time; that his identity, self-worth and self-direction fluctuates, that he has poorly regulated patterns of cognition, emotional experience, emotional expression and behaviour; that the appellant has a diagnosis of depression and has had a number of engagements with mental health services in prison.

In support of his submissions in terms of suspension and indeed the length of the sentence, Mr McKee further tells us that since his incarceration the appellant has made good progress. He has done well in custody, engaging well with those who can assist him and has been addressing his substance misuse issues. We are further told that since he has been in custody his father has unfortunately been diagnosed with and is being treated for secondary cancer.

Mr McKee submits that all of these factors taken together should have resulted in the sentence being suspended and that at the very least these facts should have reduced the notional sentence within the guidelines.

We express our concern that notwithstanding his guilty plea in the Magistrates' Court no reports seem to have been requested or ordered in relation to this appellant before his appearance for sentence at the Crown Court. The magistrates clearly should have been invited to order a pre-sentence report at the sending hearing and if that was not done a request could have been made at the Crown Court to order such a report and indeed a psychiatric report should one have been considered necessary prior to listing for sentence.

In our view whilst this offence was plainly serious and warranted a custodial sentence, there is force in the submission that the Recorder should have requested and considered a pre-sentence report in the case. Section 30 of the Sentencing Act 2020 required her to do so unless the court considered it to be unnecessary. It was plain that the sentence imposed was likely to be of a length capable of suspension. Counsel for the appellant had instructions, which turned out to be correct, to the effect that the appellant had engaged with mental health services in custody.

Whilst we are not saying that reports are always necessary when an offender asserts that he may have mental health conditions, in the circumstances of this case these factors in our view called for more information on the appellant to ensure that the Recorder had all that she needed to properly balance the criteria for and against suspending any sentence imposed. At the very least the Recorder could have asked a member of the Liaison and Diversion Team at the court to look into the medical and psychiatric background of the appellant to assist her as to whether a psychiatric report should have been ordered.

The failure to order reports meant that, albeit the Recorder seemed to accept that the appellant had some mental health issues, she sentenced the appellant without reference to the guideline on sentencing offenders with mental disorders, developmental disorders or neurological impairments. She had no information about any mental disorder and was in no position to consider whether the fact that the appellant had such a disorder should have an impact on sentence, either because it may have reduced culpability or be relevant to whether or not to suspend the appropriate custodial term.

We now have the benefit of both a pre-sentence report and a psychiatric report and in those circumstances have considered the appellant's sentence afresh.

It is clear from Dr Collins' report that the appellant does suffer from both a recurrent depressive illness and a personality disorder. It is necessary therefore to consider the overarching guideline to which we have referred. As that guideline makes clear, the fact that an offender has a disorder should always be considered by the court but it will not necessarily have an impact on sentencing. The guideline requires the sentencer to make an initial assessment of culpability in accordance with the relevant offence-specific guideline. In this regard we find ourselves in complete agreement with the Recorder for the reasons she gave. There were aspects of lesser and significant roles in the appellant acting as a courier, performing a limited function under direction and without influence on those above him in the chain and then in the expectation of significant financial advantage. The Recorder was entitled, in our view, to infer that the appellant would receive significant payment for the importation of just under £1 million worth of cannabis. He has subsequently said that he was to receive £5,000.

We are then required by the guideline to consider whether culpability was reduced by reason of the appellant's disorder. As the guideline says, this would only be the case if there is sufficient connection between the disorder and the offending behaviour. We do not consider there to be such a connection here. There is no evidence to the effect that the appellant's disorder impaired his ability to exercise appropriate judgment, make rational choices or to understand the nature and consequences of his actions. In fact the evidence is quite the reverse. The appellant agreed to bring the cannabis into the country for payment as he was experiencing financial difficulty. That was a rational, if a poor choice. He knew that it was illegal to act as he did and was aware of the consequences. As Dr Collins said, his personality disorder did not detract from his ability to consider the outcome he desired to achieve and to decide to take action to achieve it.

We do not accept Mr McKee's criticisms of the psychiatric report. It is a detailed and considered report by an expert forensic psychiatrist and we see no reason to doubt Dr Collins' conclusions.

Having considered the reports, we agree with the Recorder that the appellant's role and the quantity of drugs, just short of the indicative quantity for a Category 2 offence, warranted a notional sentence after trial of two-and-a-half years' imprisonment. We also agree with the downward adjustment of three months for mitigation. Whilst we know more than the Recorder about the appellant from the reports, there is nothing in our view to warrant further reduction. There is nothing in either report to suggest that the appellant's mental health makes it more difficult than would otherwise be the case for him to serve an immediate custodial term. It follows that in our view with full credit for the guilty plea the appropriate custodial term was one of 18 months' imprisonment.

We turn finally to the question of suspension. We accept that the Recorder should in her sentencing remarks have given more detail as to why she concluded that the sentence imposed should not be suspended. We are however in agreement with her conclusion in this regard. We accept that the reports, particularly the pre-sentence report, indicate that there is a realistic prospect of rehabilitation in the community. We accept that the appellant does not present a high risk of re-offending or harm and that he has some, albeit not especially strong mitigation. However, we agree with the Recorder that the seriousness of this offence means that appropriate punishment can only be achieved by immediate custody. Purely for personal gain this appellant sought to import a large amount of cannabis, worth close to £1 million on the streets. There is little in the way of mitigation.

It follows that having the benefit of both the pre-sentence report and the psychiatric report, and with reference to both the guideline for sentencing those with mental disorders and the imposition guideline, we have come to the same conclusion as the Recorder and consider that 18 months' imprisonment is both just and proportionate for this serious offence. This appeal is accordingly dismissed.