R v Christopher Lee Wilkinson

On 20 November 2024, having pleaded guilty before the Magistrates’ Court, the appellant (then aged 35) was sentenced in the Crown Court at Durham before HHJ Laird KC to a sentence of 3 years 8 months’ imprisonment for each of two counts of possessing a Class A drug with intent to supply, and a sentence of 6 months’ imprisonment for each of two counts of possessing a Class C drug with intent to supply. all sentences to run concurrently. The appellant appeals against sentence by leave of the single judge.

The facts may be briefly stated as follows. At 1.15 in the afternoon on 9 June 2022, PCs Steven and Clarke stopped a white Vauxhall Astra in Essington Way in Peterlee. There was police intelligence that the vehicle was linked to drugs supply. The appellant was in the driver’s seat and his co-defendant, Neil Blair, was in the front passenger seat. Both men were detained and searched under the Misuse of Drugs Act. The appellant was found in possession of £300 cash and a blister pack with two capsules of pregabalin. A blue carrier bag containing a box of diazepam tablets that Blair claimed was for his personal use was found under the front passenger seat. The tablets were later confirmed to be flubromazolam, a controlled drug of Class C. The appellant and Blair were both arrested on suspicion of possession with intent to supply controlled drugs. When Blair was searched, he produced 19 re-sealable bags of brown powder and 12 wraps of white powder from his underwear. These were later confirmed to be the Class A drugs diamorphine and crack cocaine.

The drugs were examined and valued. The crack cocaine was worth between £220 and £255, the diamorphine between £290 and £285, the flubromazolam between £130.50 and £261 and the pregabalin between £3 and £9.

In sentencing the appellant, the judge noted that the appellant had four convictions for four offences spanning from December 2011 to November 2022, including two relevant convictions for possessing a controlled drug of Class A with intent to supply dating from 2017. The judge placed the appellant’s offending in category 3 (street dealing), with a significant role. That indicates a starting point of 4½ years with a category range of 3½ to 7 years. No issue is taken with that categorisation.

As to mitigation, the judge noted that the offence occurred in 2022 and the appellant had not offended since then as he had overcome his addiction to cocaine. It is also noted that the appellant was a carer for his mother and that his imprisonment would have an adverse effect on her. The judge also gave the appellant the full one-third credit for his plea.

The appellant, ably represented before us as he was below by Mr Scarborough, makes the straightforward submission that the judge erred by failing to take account of the mitigation which the judge appeared to accept. He submits that the judge, having correctly applied an uplift to the starting point on account of the antecedents, ought then to have applied a significant reduction to account for the substantial mitigation in this case, and that, as such, the sentence imposed was manifestly excessive.

The argument on appeal has the superficial attraction of simplicity. Mr Scarborough is correct to say that there is no apparent reduction for mitigation in this case. Where express reference is made to mitigating factors in the sentencing remarks, it can normally be assumed that these were borne in mind in determining any adjustment from the starting point even if no precise level of reduction is specified. The duty on the sentencing judge is simply to give an explanation of the sentence in general terms (as confirmed recently in the case of Royle & Ors [2023] EWCA Crim 1311 at [41]).

In the present case, however, the judge’s remarks suggest that there was an upward adjustment from the starting point specifically due to the antecedents. Thereafter no further adjustment is mentioned save for the discount for plea. It is difficult in these circumstances to infer that the notional sentence of 5½ years before discount for plea was reached after taking into account all relevant factors including the mitigating ones to which the judge’s attention had been drawn. If, as appears to be the case here, no account was taken of the mitigating factors, then that would amount to a material error. However, the question for this Court is whether, notwithstanding that error, the sentence imposed is wrong in principle or manifestly excessive so as to entitle this Court to interfere.

It has to be borne in mind that the starting point and uplift applied by the judge were those that were appropriate if sentencing for a single offence. Here, as the judge notes, at 3H of the sentencing remarks, he was sentencing for two offences, although no express adjustment appears to have been made for that by, for example, applying an uplift to the lead offence to reflect the overall criminality involved in the offending.

Applying the principles of totality and taking the sentence on the first Class A offence as the lead count, the judge would have been entitled to increase the sentence on the lead count by a further significant amount to reflect the overall criminality of the offending involved, including the Class C offences which were to run concurrently. (We note Mr Scarborough’s submission that this was simply one course of dealing drugs at a relatively low level. However, the fact that the defendant was before the court for four offences charged does make it a more serious matter which the judge would have been properly entitled to take into account as a matter of totality). Had such an increase been applied the notional sentence before reduction for plea could reasonably have been increased to 6 years or more. Thereafter, any reduction for personal mitigation would have resulted in a notional sentence before reduction for plea at around the same 5½ year point identified by the judge or, at best, very slightly lower than that. On any view, the judge’s failure to account expressly for mitigation does not lead to the conclusion that the eventual sentence of 3 years 8 months was manifestly excessive. Accordingly, and notwithstanding Mr Scarborough’s elegant and concise submissions, this appeal falls to be dismissed.