R v Keane Mulligan

We remind everybody that an order was made under section 45 of the Youth Justice and Criminal Evidence Act 1999 prohibiting publication of any matter likely to identify any of the children referred to in this case.

This is an appeal against sentence with the leave of the High Court Judge.

On 12 December 2024 at the Crown Court in Liverpool, His Honour Judge Dennis Watson KC imposed an overall sentence of 8 years and 6 months' detention in a young offenders’ institute upon this appellant. There were two sentences of 8 years and 6 months' detention for counts of being concerned in the supply of cocaine and heroin respectively. In addition, there were sentences of 3 years 8 months' detention for two counts of conspiring to arrange or facilitate the travel of another with a view to the exploitation of that person, and a further sentence of 3 years and 8 months' detention for a substantive exploitation count. Finally, there was a sentence of 27 months' detention for the fraudulent evasion of a prohibition by importing cannabis. All sentences were concurrent with each other, making an overall sentence of 8 years and 6 months' detention.

Following reports of drug dealing in the Newton-le-Willows and St Helens areas, a county lines task force was deployed. On 4 April 2024 officers arrested a 16-year-old boy carrying crack cocaine, diamorphine, cash and a phone which was frequently in contact with Graham McEvoy (also a defendant) who was found nearby. When Mr McEvoy's house was searched, drugs and paraphernalia were found. Mr McEvoy and the 16-year-old were bailed. However, the 16-year-old was found to be a vulnerable individual who had been the victim of exploitation and he was not charged.

The next day, 5 April 2024, Mr McEvoy and two other males were approached by officers. One of the males (who turned out to be 17 years old) fled but was caught and found to be in possession of £280 cash and crack cocaine. He had diamorphine secreted in his anus. At his house a further £565 was found. This person is the victim of count 3. He was not prosecuted given his age and the fact that he had been trafficked. Mr McEvoy and the other male, Lewis Davies (also a defendant), were arrested. Mr Davies had a quantity of cash on him.

Interrogation of Mr McEvoy's phone indicated that the operation involved young vulnerable males being coerced to supply cocaine and collect money for its payments which they were expected to deliver to those up the chain. The operation appeared to work in the following way. A co-defendant, Mr Byott, would send "flare" messages out before about 8 o’clock in the morning. Once a customer indicated an interest in purchasing drugs, a runner would be sent to effect the transaction. The runners (of whom seven were identified) were expected to be available at all times, including late at night. They were placed in dangerous situations, where addicts might refuse to pay or try to steal drugs from them. Rival gangs were vying to take over the line. The runners were also exposed to the Class A drugs they were selling. They were paid about £50 to £100 per day. Mr Byott was at the top of the chain. He set the prices and knew the quantities of the drugs available. The appellant, Mr Davies and Mr McEvoy were below him on a roughly equal footing with each other. Counts 1 and 2 represented the appellant's role in the supply of cocaine and heroin respectively. Count 3 represented his part in the conspiracy to exploit the 17-year-old who was stopped by police on 5 April 2024. Count 8 represented his part in the conspiracy to exploit a different runner who was also 17 years old. Count 10 was a substantive charge, representing the exploitation of another 17-year-old. He appears to have been particularly working for the appellant, hence the substantive count. All three of these children were vulnerable because of their age, characteristics and personal circumstances which were set out in the Crown's Opening Note.

The Crown could not give a precise assessment of the amounts of drugs trafficked as it had not been possible to retrieve messages from all platforms used. An assessment was made of the volume of the drugs sold between 14 February 2024 and 10 April 2024. It would seem that the operation was stopped in its relative infancy. The Crown's expert was of the view that had the operation not been stopped, the sums raised would have been in the region of £800,000 to £1 million per year.

Following his arrest on 10 April, the appellant's home was searched. There officers found a letter from Border Force regarding a parcel which had been intercepted. It had contained 1 kg of cannabis. He was then arrested for that matter, which was to become count 9 on the indictment.

The appellant, Mr McEvoy and Mr Davies were of similar age. They were all of previous good character. The appellant was 18 at the time of the offending and 19 at sentence; he is now 20. Mr Byott was 30 at sentence and had a number of convictions for drugs trafficking.

The appellant entered his plea to count 9 at the pre-trial preparation hearing. His pleas to counts 1 and 2 were entered on the first day of trial. His pleas to counts 3, 8 and 10 were entered on 17 October, part way through the trial.

The judge first assessed the scale of the operation. He concluded that the total amount of Class A drugs supplied was more than half a kilogramme. He said that the drugs trafficking offences were within category 3 of the guidelines. He said that given the quantities supplied, it was appropriate to increase the sentences towards or to the top of the bracket. He remarked that the operation had involved the exploitation of extremely vulnerable people. He referred to a dictum of Hughes LJ in R v Boakye [2012] EWCA Crim 838 as authority for the proposition that "the weights which determine the categories are not thresholds but indications of the general region of weight that goes into the relevant category". As he said however, "it is not an exclusively arithmetical process".

Turning to the guidelines for the exploitation offences, he referred to the section which states that:

Having then referred to the principles in R v Mason [2023] EWCA Crim 1540, he considered the exploitation matters. He noted that those exploited were children. He then considered the particular features of the case. He remarked that three of the children were 15. We note that the appellant pleaded guilty only to exploitation offences in relation to 17-year-olds, as was properly recognised by the judge when sentencing this appellant. The exploitation involved the commission of serious offences which placed the children exploited in real danger. All of them were exploited on repeated occasions. Lastly, some of the offenders, including the appellant, had exploited more than one child.

The sentencing judge then explained his methodology. He would first identify the correct starting point for the drugs matters. He would then consider aggravating and mitigating features. He regarded the quantity of the drugs and the period of offending as aggravating features. However, he would leave exploitation out of account for the drugs offences. He would then arrive at the sentences for the exploitation matters and then uplift the drugs offences so that they would represent all criminality and pass concurrent sentences and that would avoid the risk of double counting.

Having sentenced Mr McEvoy and Mr Davies, he turned to the appellant. He identified his age at plea and sentence and the timing of the pleas. He identified his role as "more leading than significant" but below that of Mr McEvoy and Mr Byott and above that of Mr Davies. He said:

He then took account of the contents of the pre-sentence report and the appellant's lack of previous convictions. He said that the sentence for the county lines matters alone "could not have been less than seven years". He afforded 10% credit, giving sentences of 6 years and 3 months.

He then turned to the importation of the cannabis. He said that the quantity was well above the indicative quantity in category 4 but well below that for category 3. The appellant's role was significant. He said that category 4 significant role gave a starting point of 3 years, but there would have been an upwards adjustment for the weight, but then downwards for age and other mitigation. The sentence after trial would have been 3 years, so with 25% credit was 27 months' detention in a young offenders’ institute. He then said that as a result of this offence, the sentence on the drugs trafficking matters would be uplifted by 3 months, noting that it should be more but he also had to apply a separate uplift for the exploitation matters and had to have an eye to totality.

Turning to the exploitation offences, he put those within category 4 harm but said he would move up the bracket to reflect that the three victims were all aged 17 years. It would appear that he placed these offences in medium culpability. That category has a starting point of 3 years in a range of between 1 and 5 years. He arrived at a "notional" sentence before aggravating and mitigating features were taken into account of 4 years and 6 months, which he reduced to 4 years before giving credit for the pleas entered during the trial. That reduced the sentences to 3 years and 8 months. Though he did not state the figure, that means the credit was just over 8%.

He then added a 2-year uplift to the county lines drugs offence to represent the exploitation offences. He said that he was not applying an uplift of 2 years and 3 months which he had applied to other defendants because of the appellant's age.

There are four grounds. Firstly, it is argued that the judge applied a starting point for the drugs offences which was too high. Secondly, that the uplift to reflect the overall criminality was too great. Thirdly, that the sentence for a young man of good character was neither just nor proportionate. Fourthly, that the sentence was manifestly excessive.

The appellant was 18 years old at the time of offending, though he was close to his 19th birthday. The author of the pre-sentence report assessed the appellant as being an 18-year-old whose lack of maturity affected his decision making and he was strongly influenced by his peers. He was, the author thought, still undergoing emotional development.

We remind ourselves of some of the observations set out in the case of R v Clarke [2018] EWCA Crim 185, including that reaching the age of 18 does not present a cliff edge for the purposes of sentencing, that full maturity is not automatically conferred on young people on their 18th birthday, and that in sentencing, the level of maturity must be assessed beyond their 18th birthday. We note the guidance in the Guideline for Sentencing children and young people:

In this case the judge did make reference to the age of the appellant. He also said that he did take into account the contents of the pre-sentence report, though he did not specifically refer to immaturity. However, in relation to the county lines drugs matters the judge said that this appellant's role "straddled leading role and significant role", before identifying a sentence after trial which was at the very top bracket for category 3 significant role and just above the bottom bracket for category 3 leading role. It is difficult in those circumstances to see that any significant discount was made for age or immaturity.

In relation to the exploitation matters, the judge said that he had reduced the sentence after trial of 4 years and 6 months, "for age and other mitigation", to 4 years before applying credit for a guilty plea. Given that there was other mitigation apart from age (including his lack of previous convictions) any reduction for age and immaturity must have been slight and certainly less than 6 months.

We now consider the importation. We note that the judge said that category 4 significant role has a starting point of 3 years. That is the case for Class A drugs. However, for cannabis, the starting point for category 4 significant role is a higher-level community order with a range of a medium-level community order to 9 months in custody. We note that this is not raised in the grounds of appeal. But had the correct starting point been identified, it seems likely that little or no uplift would have been added to the overall sentence.

We note the comments of the author of the pre-sentence report about this appellant. Given his age and background, there was more than a suspicion that he had been exploited in the past. Immaturity had played its part. The author wrote:

For all these reasons, and principally because insufficient account was taken of his age and immaturity, we consider that the overall sentence was manifestly excessive.

Applying sufficient discount to reflect the appellant's age and immaturity, the sentence after trial for the offences of being concerned in the supply of Class A drugs should have been 6 years, not 7. That would give sentences after credit of 10% of 5 years and 5 months.

Similarly, the sentence after trial for the exploitation matters should have been discounted to 3 years to take account of youth and immaturity. With credit of around 8%, that would give sentences of 2 years and 9 months.

It follows that there should be a lesser uplift in relation to the county lines drugs matters. We consider that the correct uplift is 15 months.

In relation to the importation matter, we note that the amount of drug was more than the indicative amount in category 4 and much less than that in category 3. The starting point for significant role category 4 is, as we have remarked, a higher-level community order with a range of between a medium-level community order and 9 months' detention. The starting point for significant role category 3 is 2 years' custody with a range of 18 months to 3 years' custody. The correct sentence after discount for age and immaturity would have been 8 months' custody, from which 25% credit should be deducted, giving a sentence of 6 months. Given the length of the sentences on the other matters, we do not consider that this should increase the overall sentence and we do not uplift the sentences on the county lines drugs offences as a result of this matter.

Accordingly, we quash the sentences and replace them as follows: