R v Trevor Harris

This is an appeal against sentence brought with the leave of the single judge, who also granted the modest extension of time of eight days required for the application. We will turn to the specific grounds further below. We would like to thank Mr Hanns who has appeared before the appellant before us this morning for the extremely polished and succinct way in which he has expanded orally the grounds that were submitted in writing.

On 3 December 2023, the appellant arrived at Birmingham airport, having flown there on a flight from Montego Bay, Jamaica where he had been staying for a few days, having gone to visit family members who lived there, one of whom was ill. He collected his luggage from baggage reclaim and went through the "nothing to declare" green channel at the airport – part of the Customs arrangements for people coming into the country. He did not know this, but his luggage had been X-rayed at the airport and some suspicious packages within one of his suitcases had been identified. Accordingly, he was stopped by Border Force personnel when leaving the baggage hall, and he was questioned. He confirmed that the luggage was his and that he had packed it himself.

When opened, his large suitcase was found to have within it a Harley Davidson bag within which were ten packages each labelled as Blue Mountain Coffee.

The prosecution's sentencing note below shows that when the appellant was asked about these, before the bags were opened, he said that they were gifts for friends. When they were opened, they were found to contain drugs. Each of the bags that was said to be coffee weighed approximately one kilogram, and each contained cocaine of 88 per cent purity. In total, the amount of drugs in the suitcase weighed 10.78 kilograms, with a street value of approximately £800,000.

Also found at the appellant's flat were some weighing scales which were found to have traces of cocaine and phenacetin on them. The appellant disclaimed all knowledge of the drugs and claimed that they must have been planted in his luggage without his knowledge.

He was charged with one count of fraudulent evasion of a prohibition by bringing a controlled drug into the United Kingdom, contrary to both section 170(2) of the Customs and Excise Management Act 1979 and section 3 of the Misuse of Drugs Act 1971. He was tried in the Crown Court at Birmingham before His Honour Judge Francis Laird KC and a jury. At his trial he gave evidence in his own defence and he said that the Border Force officers were mistaken. He said that his reference to "gifts" was about other items in his luggage, not the bags in question, and he said that he had never seen either the Harley Davidson bag or the coffee before. He said that this must have been an attempt by an unknown individual to import drugs without his knowledge. He said that when he checked in at the airport, he had had to move items from his overweight luggage and that he did not notice the bag within his suitcase at that stage. The jury convicted him on 3 June 2024.

On 29 July 2024, he was sentenced by the trial judge to a term of 11 years' imprisonment. The relevant surcharge was imposed, together with the usual forfeiture and destruction order.

In sentencing the appellant the judge had the benefit of a short form pre-sentence report. The appellant was at that time 44 years old. He had three previous convictions for 11 offences dating back to 10 November 2003, when he had his first conviction for driving whilst disqualified. Since then he had committed further offences of driving whilst disqualified on 17 August 2004, and theft in 2017. He had no previous convictions relating to drugs and therefore no relevant previous convictions. He had also never before been subject to a custodial sentence.

The judge recognised that the appellant was an industrious man and a loving father, and that he had caring responsibilities for his parents. The judge noted however that he did continue to deny any responsibility for the offending.

The judge assessed the relevant guidelines in the following way:

In a sentencing note for the court, the prosecution had submitted that the appellant had an operational function within a chain. The evidence of the scales within his premises was indicative of weighing, cutting and packaging into smaller quantities. It was also said to be indicative of some awareness on the part of the appellant of the scale of the operation. The prosecution relied on the fact that he had changed his account in evidence as to the principal reason for going to Jamaica, coupled with that visit being a relatively short trip which the prosecution submitted was indicative of his intent and knowledge. There was no evidence of duress or pressure having been brought to bear upon the appellant, and it was submitted that he had a "significant" role.

By using the expression that he did in his sentencing remarks, namely "somewhere between the two", the judge must have meant between the role of a so-called "drug mule", which would be a lesser role, and a "leading" role. That does indeed place the appellant in the category of "significant" role, with the starting point within that range for category 1 harm of the figures identified by the judge, namely a starting point of ten years' custody, with a range of nine to 12 years, which was the starting point and range identified by the judge.

Having dealt with the lack of aggravating factors and the appellant's mitigation, the judge continued as follows:

We are well aware of the pressures on busy Crown Court Judges generally, and also that in this case the judge had conducted the trial and was therefore fully aware of the facts of the offending, as indeed was the appellant himself. Having said that, the judge's sentencing remarks are extremely sparse, if not verging on the absolute minimum required in order properly to explain both to the appellant, and indeed to this court, the explanation for the sentence that the judge reached. Explanation for any sentence is a statutory requirement under the Sentencing Act. It must also be remembered that the appellant, although he had previous convictions, had never been sentenced to any period of custody before; this was his first ever custodial sentence. 11 years' imprisonment is a lengthy sentence by any measure, and sentencing remarks of such sparseness as the judge adopted in this case are not of particular assistance. It is part of the function of sentencing that enough detail is provided by the sentencer so that society is aware of how the sentence has been reached, and what has been taken into account.

We now turn to the grounds of appeal in which the appellant submits that the sentence is manifestly excessive. Under ground 1, it is said that the judge erred in placing the appellant's offending within a Category 1 "significant role". It is conceded by the appellant that this was a Category 1 case but it is submitted that he had a "lessor role". It is said on his behalf to be inappropriate to suggest that the appellant was anything more than a "drug mule" simply because of the set of scales found at his property after his arrest at the airport.

Under ground 2, it is said that the judge gave insufficient weight to the numerous mitigating features in this case, which include: (i) the applicant's age and limited and entirely dissimilar previous convictions; (ii) the fact that this was an isolated incident; (iii) the fact that he was the primary carer for his elderly parents; (iv) his hard-working mentality, training and educational aspirations; (v) the low risk of harm as identified in the pre-sentence report; and (vi) the current state of the prison environment.

These grounds were carefully and helpfully explained and amplified orally before us this morning by Mr Hanns. As we have said, we are grateful to him. He identified that effectively ground 1 was the main ground upon which the appellant relied. He contends that the appellant should have been classified as having either a "lesser role", or a role somewhere on the cusp between "lesser" and "significant".

We shall deal, firstly, with the second ground, namely that the judge gave insufficient weight to the appellant's mitigation. Firstly, his lack of relevant convictions is not a mitigating feature; it is an absence of an aggravating feature. This was correctly dealt with by the judge who expressly said in relation to the appellant's convictions that:

It is correct that the judge did not refer specifically to the state of the prison environment and the conditions there. In his written submissions Mr Hanns relied on the well known authority of R v Ali [2023] EWCA Crim 232, in which Edis LJ dealt with this point in the context of a short sentence of six months' imprisonment for an assault on an emergency worker and whether it ought to be suspended. In his judgment, Edis LJ referred to, with approval, and followed the re-statement of principles contained in R v Manning [2020] EWCA Crim 592 in which the then Lord Chief Justice, Lord Burnett, on an Attorney General's Refence, said at [41] that the hearing was taking place

In our judgment, it is plain that such considerations are of greater weight when the likely sentence is a shorter one and the important decision before the court is whether or not to suspend the sentence. This is clear from the express terms of the judgments in both Manning and Ali.

Here, where the offence was the illegal importation of over ten kilograms of high purity cocaine, a significant prison sentence was the only realistic outcome. In those circumstances we are satisfied that express reference by the judge in the sentencing remarks to prison conditions is of less relevance that in a Manning or Ali type situation. We would also add that Mr Hanns has realistically accepted this morning that the prison conditions as at 2024 and 2025 are of less seriousness than those that were identified at the times those two cases were decided.

We are also content that the judge would have had such matters as prison conditions in mind in any event, notwithstanding that he did not separately list this as a consideration in his sentencing remarks. He specifically referred to the pre-sentence report, the industries of the appellant and his role as a father and carer for his parents.

We would also add that the fact that this offence is what has been referred to as an "isolated incident" is not a mitigating factor either. The starting point and range in the guidelines are for a single offence. It is not mitigation that a drug smuggler has not smuggled drugs on other occasions. It would be an aggravating factor if they had; but the absence of such aggravation does not amount to mitigation.

The real challenge to the sentence passed upon the appellant is that contained in the first ground of appeal and upon which Mr Hanns concentrated, namely the way that the judge assessed the guidelines and his categorisation of the appellant as having had a "significant role". This has a starting point of ten years' custody, and a range of nine to 12 years, compared to the categorisation contended for on his behalf, namely either a "lesser role", which has a starting point of eight years' custody and a range of six to nine years, or a role somewhere on the cusp of those two.

It is important to remember, as has been said in this court very many times before, that the sentencing guidelines are not rigid tramlines. All offending will have factual differences, and it is the assessment of where the offending sits within the relevant brackets, or sometimes between the different brackets, and occasionally above the top of the most serious bracket, that is the province of the sentencing judge predominantly.

In the case with which we are concerned, the sentencing judge conducted the trial. He was intimately acquainted with all the facts and he was ideally placed to assess where the offending sat in comparison with the relevant guideline. As he said, the offending sat between the two different categories of "lesser role" and "leading role". Not only was he ideally placed to come to such an assessment, but an analysis of the facts demonstrates that, in our judgment, this was entirely correct. The appellant had transported nearly 11 kilograms of high purity cocaine into the country following a short trip of seven days to Jamaica, and had in his accommodation small scales with traces of the drug were found at his flat. This is not the activity of a person known colloquially as a "drug mule" whose only job is to transport drugs across borders for others.

Secondly, and in our judgment most importantly, as the judge explained, the guidelines with their sentencing ranges for this category are for a weight of drugs of five kilograms. The amount being carried by the appellant was over twice that amount – over ten kilograms, as we have said. 10.8 kilograms of high purity cocaine is a substantial amount of drugs.

Most airline baggage limits for checked suitcases are 20 or 23 kilograms. This means that almost half of the ordinary weight limit of a large suitcase being transported by the appellant contained drugs. We do not need to repeat that this is a large amount of drugs and more than twice the amount provided for in the guidelines.

The judge was entitled – indeed, in our judgment, entirely justified – to move well above the starting point of ten years' imprisonment, to reflect the fact that the amount of drugs was 10.8 kilograms, and not the five kilograms used as the benchmark in the sentencing guidelines. He would have been entitled to move up to the top of the range, if not beyond, before applying a reduction for mitigation. The net movement upwards from ten years to the 11 years he selected as the final figure is based purely upon the weight of the drugs in question and the need for mitigation to be taken into account. It is understandable and, in our judgment, justified on the facts. In any event, the exercise of this appellate court is to consider the eventual sentence that was imposed and whether it was manifestly excessive.

We have considered both separately and cumulatively the two grounds of appeal. Neither of them, either separately or together, persuades us that the sentence of 11 years' imprisonment that was imposed upon the appellant for this offending was manifestly excessive, which is the test to be applied by this court.

Accordingly, the appeal against sentence is dismissed.