R v David Thomas Brown & Anor

These are conjoined applications by His Majesty's Solicitor General for leave to refer to this court two sentences under section 36 of the Criminal Justice Act 1988 ("the 1988 Act") both of which she considers to be unduly lenient.

The offenders, David Brown and Daniel Moss, are both now aged 40. We shall refer to them in this judgment as Brown and Moss, intending no disrespect, as the easiest way of distinguishing each of them.

On 9 March 2023, in the Crown Court at Kingston upon Hull, Brown pleaded guilty at a plea and trial preparation hearing to being concerned in supplying a controlled drug of Class A (Count 1) and to possessing a controlled drug of Class A with intent (Count 4). Daniel Moss, who was charged on the same indictment with the same offence of being concerned in the supply of a controlled drug of Class A (Count 1) and a separate offence of possessing criminal property (Count 7), pleaded not guilty and the case was sent for trial.

On 21 August 2023 at the same court, on the first day of trial, Moss changed his pleas to guilty.

Subsequently, and in separate proceedings on 1 Feb 2024 before the Hull Magistrates' Court, Moss pleaded guilty to an offence of possession with intent to supply Class A drugs and was committed for sentence to the Crown Court ("the committal offence").

Brown and Moss appeared together for sentence on 27 January 2026. Brown was sentenced to a total of 46 months' imprisonment: 46 months on Count 1 and a concurrent term of 12 months on Count 4.

Moss was sentenced to a total of 73 months' imprisonment, comprising 61 months on Count 1, a concurrent term of 12 months on Count 7, and a consecutive term of 12 months for the committal offence.

The Solicitor General seeks leave to refer these sentences on the basis that the total sentences in each case failed to reflect the seriousness of the offending.

We take the facts, which are agreed, from the Solicitor General's Reference.

The offenders were identified as part of "Operation Barbados", a wide scale police drugs operation investigating the supply of cocaine in the Beverley and East Riding area of Hull.

On 25 June 2020, a warrant was executed by police at the home address of Eve and James Mooney. Upon arrest, Eve Mooney stated: "There's a safe upstairs that belongs to Dave, but I don't have the code". Police recovered almost a kilo of cocaine valued at £122,000 from the safe. The cocaine was subsequently analysed and found to comprise six packages totalling 959 grams, with a purity of 86 per cent.

Eve and James Mooney used their home address as a "stash house" for cocaine. The back bedroom held the safe from which police seized the kilo of cocaine. The drugs were cut and chopped in that back bedroom with David Brown and Daniel Moss present.

Brown had been seen driving away from the Mooneys' house and, upon his arrest, was found to be in possession of the key to the safe. Analysis of the Mooneys' mobile phones implicated Brown ("Brownie") and Moss ("Noddy") and, together with other evidence, showed that both offenders were involved in buying kilo consignments of pure cocaine and trading large weights to a co-accused. Michael Spaven who, in turn, distributed to street dealers.

On 25 June 2020, police also seized 75.2 grams of cocaine with a street value of £9,005 from the home address of Michael Spaven at 2 Globe Mews. The police seized dealer lists from Michael Spaven's bin and from the top of his television which indicated that he was selling wholesale quantities of cocaine to others. The lists made references to "Dave" and the name "Lang" which were also discovered on a dealer list later found at Moss' address. The telephone evidence indicated that Spaven was involved in receiving wholesale quantities of cocaine from Brown and Moss and trading it on to street dealers.

Following an analysis of Eve and James Mooney's mobile phones, police officers attended Moss' home address at 93 Cottingham Road, Hull on 23 October 2020 and he was arrested. Moss informed officers that he had a safe and that this contained £1,000. He also told officers that there was £500 in the central console of his work vehicle, and £2,600 in the boot of his car. He claimed that the monies recovered from the car were from his employment, not his personal money, and that the remainder from the safe belonged to him.

Moss' home address was searched and officers located and seized a total of £6,350 in cash (Count 7). Dealer lists were found, indicating the wholesale purchase and supply of quantities of cocaine (Count 1). Officers also seized a tub of creatine, a known cutting agent. Cocaine was located in the kitchen area within two small bags.

Moss was the business partner of Brown. The offenders were co-directors in a company called BMP Developments Limited, which had been set up on 18 March 2020. The business was described as "other letting and operating of owned or leased real estate".

All defendants refused to provide PINs to their respective mobile phones. Moss had factory reset his handset.

The joint experts' report prepared as part of the proceedings, between the prosecution expert and Moss' expert, concluded that, based upon the figures within the dealers list attributed to Spaven which suggested "typical" daily sales of between 14 and 35 grams per day with an average of 13.3 grams per day, over a 392 day period between 2019 and 2020, resulted in an estimated supply of 5.15 kilograms.

When interviewed, Brown answered "No comment" to all questions asked of him.

In his first interview on 23 October 2020, Moss denied any involvement in supplying drugs. He confirmed that he knew Brown as they were best friends; they had known each other for many years; and they had a business together. He discussed financial affairs with his wife Fiona as to property purchasing. He confirmed that his nickname was "Noddy". He confirmed that he knew James Mooney from school and that they drank together. He replied "No comment" to questions put regarding the drugs found within a safe at the Mooneys' address. He was asked about the remaining co-accused and, in the main, replied "No comment". When informed that the mobile number of "Noddy" ending 4373 was stored in Eve Mooney's mobile phone, he confirmed that that was his mobile phone number but refused to provide a PIN or passcode to his mobile phone.

Moss was further interviewed on 9 June 2022. He predominantly answered, "No comment", but claimed that any money within his possession was legitimate.

Brown was also re-interviewed in 2022. He provided a prepared statement in which he admitted to having been given a safe key by a male, whom he would not name and who owned the drugs. He stated that he had gone to buy 125 grams of drugs (at a cost of £10,000). However, he said that he did not take any cash with him and did not make the purchase as he thought that the drugs were under weight. He admitted to selling drugs to friends and friends of friends.

On 24 August 2022, plain-clothed officers observed a black VW Passat at Ings Shopping Centre Car Park, Savoy Road in Hull. The vehicle was parked in a car park; its only occupant was the driver. The driver was Moss. Officers detained him and asked him whether there was anything in the vehicle that he "should not have", to which he replied, "No comment". A search of the vehicle was conducted. Officers discovered a white bin bag behind the driver's seat. Inside this was a black bin bag containing packaging enclosing a one kilo block of cocaine. Moss was arrested for being concerned in the supply of Class A drugs and was taken to Clough Road Police Station. Officers continued to search the vehicle and discovered paperwork relating to 53 Lawson Avenue, in Cottingham, near Hull, which was Moss' rented address. A set of keys was also seized from him, which allowed the officers to conduct a search of the address. During the search of the address, a total of £2,430 and $440 in cash was seized, in addition to grip seal bags and weighing scales. Also seized were quantities of cocaine comprising: 890 milligrams of cocaine with a purity of 85 per cent; 673 grams of cocaine at a purity of 78 per cent; 332 grams of cocaine at a purity of 80 per cent; and 7.38 grams of cocaine with a purity of 88 per cent. A purity range of between 78 and 88 per cent is consistent with import-grade cocaine which would be sold at a premium price. There was no indication of the presence of creatine within the forensic analysis of that cocaine. Moss declined to comment to all questions asked in interview.

Brown is now 40 years of age. He has two convictions for five offences which include two offences of producing cannabis in 2011, for which he received a sentence of 16 months' imprisonment.

Moss is 40 years of age. At the time of sentence, he had no previous convictions, cautions, reprimands or warnings.

The offenders first appeared before Hull Magistrates' Court on 9 February 2023. Each indicated not guilty pleas and the matter was sent for trial under section 51 of the Crime and Disorder Act 1988. On the Better Case Management Form, Brown indicated an intention to agree a basis of plea when able to consider the extent and length of his alleged involvement, but his representatives had been unable to access the IDPC on common platform.

The offenders' cases were listed for a plea and trial preparation hearing (PTPH) on 9 March 2023. On that occasion Brown pleaded guilty, while Moss pleaded not guilty and a trial was fixed for 21 August 2023.

On 21 August 2023, the first day of trial, Moss pleaded guilty to counts 1 and 7 on the indictment, on a basis of plea to be uploaded within 14 days. The court was informed that Moss had a further offence of possession with intent to supply / possession of criminal property but that case had not yet been charged.

A basis of plea was served on behalf of Moss on 22 September 2023 which was unacceptable to the prosecution. On 1 December 2023, the case was listed for mention. By this stage Moss had been charged with the further offence of possession with intent to supply Class A drugs relating to the drugs found in his car on 22 August 2022. The prosecution indicated they would seek a Newton hearing for Moss in relation to the indictment offences. The cases of the offenders were severed from the cases of the co-defendants for the purposes of sentence.

All of the co-defendants were sentenced separately on 26 January 2024. It is unnecessary to set out the various sentences that they received.

Moss first appeared at Hull Magistrates' Court on 1 February 2022 on the possession with intent to supply matter arising from the drugs found in his car in August 2022. He pleaded guilty and was committed to the Crown Court for sentence (“the committal offence”).

Moss initially had a Newton hearing on 28 May 2024 in connection with his role in dealing Class A drugs, during which evidence was called by the prosecution and Moss gave evidence. The judge found: (1) that the money seized from the sale of drugs was from a shared enterprise with Brown; and (2) that Moss' role for sentencing purposes would be a "significant role".

The case was adjourned to 6 August 2024 for sentence. However, a new statement was then served by the prosecution relating to the quantity of drugs, asserting that this placed the offending into category 1 harm. Moss disputed this and a further Newton hearing was, therefore, fixed for 22 November 2024. The further Newton hearing could not take place on that date due to defence counsel not being available, nor on 11 March 2025 owing to the death of the officer in charge of the case.

The second Newton hearing was eventually held on 26 January 2026 to deal with the correct categorisation of harm in the relevant Sentencing Council guideline. Both offenders contended for the purposes of that hearing that the quantity of drugs was one kilogram.

The Crown's position was that harm fell into category 1. The evidence agreed between the Crown's drug expert, DC Russell and Moss' drug expert, Allen Morgan, was that there was at least the supply of 5.15 kilograms, but that the range could be as high as between 7.1 and 9.26 kilograms. The offenders had sought to argue that the offending fell within category 2 harm. Brown also sought to advance that he was in a "significant role", albeit no such formal basis of plea was entered. DC Stuart Russell gave evidence as part of the Newton Hearing.

The matter was listed for sentence on the following day, 27 January 2026. The judge initially gave his ruling on the matters in issue litigated as part of the previous day's Newton hearing. He found that both offenders fell within "significant role" in the sentencing guideline. He was satisfied that Brown was, for a time, above the Mooneys and that he supplied to others, including Spaven. The judge was, however, satisfied that Brown did not have any substantial influence over the Mooneys or Spaven, but that he and Moss were partners in the drug dealing enterprise. The judge concluded that the 10.4 kilograms argued for by the prosecution was significantly in excess of the amounts with which Brown and Moss had been concerned in supplying, whilst the 1 kilogram contended for by the offenders was a gross underestimate. The judge concluded the offenders had at least 5 kilograms of cocaine for distribution, and accordingly that this was a category 1 case.

The prosecution served an updated sentencing note which set out the history and the facts of the offending. They submitted that the offending fell within category 1 for both offenders, with a leading / significant role for Brown and a significant role for Moss. Material in support of mitigation was served on behalf of both.

A sentencing note was provided on behalf of Moss. It was submitted that he should receive some credit for his late guilty plea, and full credit for the committal for sentence. It was noted that he was of previous good character and had not offended since.

The judge's explanation of sentence was in each case brief. Dealing first with Brown, the judge said that he was satisfied that Brown should received a one third reduction "for pleas entered in the lower court". The judge noted that Brown was then 38 years of age, with two previous convictions, one of which, in 2011, was for producing cannabis. He observed that Brown had waited to be sentenced for some time and that delay was something that should be reflected in a modest reduction of 12 months. He said that the positive character evidence reflected well on Brown. Then, without more, the judge imposed a sentence of 46 months' imprisonment.

Turning to Moss, the judge said that he had no convictions recorded against him. His guilty pleas had been entered at trial and he was "entitled to some credit for that". He said that he took into account the delay and previous good character and went on to impose a sentence of 72 months' imprisonment on Count 1, and a concurrent term of 12 months' imprisonment on Count 7. In relation to the subsequent committal offence, the judge noted that Moss had pleaded guilty at the first opportunity, which entitled him to a one third reduction. He said that he would have imposed a sentence of three years but would reduce it for the early guilty plea "and I have totality in mind". He then announced a total sentence of 84 months' imprisonment.

A short while later the transcript shows that counsel for Moss returned to court and asked the judge to clarify Moss' sentence, by reference to that passed on Brown. After a short discussion the judge reduced the sentence passed on Moss on Count 1 to 65 months, with a consecutive term of 12 months for the committal offence, resulting in a total sentence of 77 months' imprisonment, as it is recorded on the transcript. We are told today that Mr Saddington returned to the judge a second time in order further to clarify the sentence, after which the judge imposed a total sentence of 73 months' imprisonment, comprising 61 months on Count 1 and a consecutive term of 12 months' imprisonment on the committal offence.

We are grateful to Miss Robertson for directing us to the main points taken from the Reference. These are:

In brief submissions in response, both Mr Preece on behalf of Brown and Mr Saddington on behalf of Moss urged that there had been mitigation, that whilst the judge might have been generous in the reductions which he made for the mitigating feature of delay, and that whilst the final sentences might accordingly have been lenient, they were not so much so as to be unduly lenient warranting review.

A sentence will only be unduly lenient if it falls outside the range of sentences which a judge could reasonably consider appropriate. This court will not review a sentence merely because it might itself have passed a higher one. The power to review sentences under section 36 of the 1988 Act has been identified as being for the purpose of the avoidance of gross error, the allaying of widespread public concern at what appears to be an unduly lenient sentence and the preservation of public confidence in cases where a judge appears to have departed to a substantial extent from the norms of sentencing: see Attorney General's Reference (No 132 of 2001) (R v Johnson) [2003] 1 Cr App R(S) 41. Moreover, the court always retains a discretion to decline to review a sentence, even where it considers that it was unduly lenient.

Turning to the sentences passed here, we would observe and stress that, whilst brevity in sentencing is always to be encouraged, a judge's remarks should nevertheless clearly explain how the final sentence has been arrived at. With respect to this judge, we found it impossible, here, clearly to discern from his remarks what he had taken as his notional sentence after trial and before discount for guilty pleas, for either offender. We infer, from his findings at the Newton hearing, that the judge placed the Count 1 offending into "significant role" category 1 for each offender, engaging a ten year starting point under the guideline, but even that is not entirely clear from his remarks.

If, in the case of Brown, the judge did take a ten year starting point, and if, as he said he would, he reduced that by 12 months for delay, to nine years, then the judge must have reduced it again by more than three years for (unspecified) personal mitigation in circumstances where Brown was not of previous good character. In the absence of any other explanation for his arriving at a final sentence of 46 months (equating to 69 months before a one third discount for the guilty plea, we are firmly of the view that such a large reduction was unjustified and has resulted in a sentence that is not only lenient but unduly so. The one third reduction which the judge applied, for a plea entered at the PTPH, originally appeared to be arguably over-generous, but we accept what Miss Robertson has said about the indication of plea on the Better Case Management Form.

We turn to Moss. Again, it is not clear whether the judge took a starting point of ten years, as he should have done given his express findings following the Newton hearings. In Moss' case, we accept Miss Robertson's submission that there was no reason to make any reduction for delay. In Sked and Others (cited above) this court observed, at [21] :

“…In cases where the delay can properly be regarded as unreasonable, an important consideration will be whether the delay has had a detrimental effect on the offender. Where there is no such detrimental effect, there may be no justification for any reduction. In a case where the offender pleads guilty, or gives a firm indication of a guilty plea, at the outset, there is likely to be a stronger case for taking the delay into account, particularly if in the meanwhile there is strong evidence of rehabilitation which, in any event, would be a highly relevant factor in mitigation. On the other hand, it is unlikely that a reduction in sentence will be appropriate in the case of an offender who delays a guilty plea until the last moment, particularly if it appears that he has been doing so as a way of gaming the system. As indicated above, the guideline on delay requires consideration of whether the offender has contributed to the delay and is in that sense at fault. Nor is a reduction, and certainly not a significant reduction, likely to be appropriate if an offender has taken advantage of the delay to commit further offences.”

Unlike Brown, Moss did not plead guilty to the indictment offences at the first opportunity nor at the PTPH. Moreover, he went on to commit a further significant drug dealing offence in 2022. There was also the need for a Newton hearing in his case, given the basis of plea which he originally advanced regarding the nature of his role in the dealing. There was no justification, in his case, to make any reduction for delay. As a man of previous good character, he had that as mitigation, justifying some reduction from the starting point in the guideline, before reduction for the guilty plea. Again, the awarding of a full ten per cent discount (if that is what the judge did) may be described as generous, given the findings made against Moss following the first Newton hearing. But in any event, as with Brown, the unexplained reductions made by the judge to arrive at a sentence of 73 months (equating to 61 months on Count 1 and a consecutive term of 12 months for the committal offence) appear to us to be far too great.

We are further troubled by the judge's approach to the separate committal offence. It was obviously right to apply a one third discount to the sentence for that offence, since Moss had pleaded guilty to this subsequent offence on his first appearance at the Magistrates' Court. But this was a Category 2 (1 kilogram of cocaine) "significant role" offence, for which the guideline starting point is eight years' custody, with a range of six and a half to ten years. Moreover, this subsequent offence was significantly aggravated by being committed whilst Moss was on police bail, having been interviewed in connection with the indictment offences shortly before. Nor could he properly be described as having been of good character when that subsequent offence was committed. The judge did not explain either the three-year sentence he identified as suitable for this offence, nor how he came to reduce that to 12 months. We are surprised that the Solicitor General did not seek to review this sentence, but we accept that the Solicitor General not having done so, it would be wrong for us to re-visit the consecutive sentence of 12 months' imprisonment for the offence the subject of the committal for sentence.

Nevertheless, in all these circumstances, we are in no doubt that a total of 73 months' imprisonment for Moss' offending was unduly lenient.

We next turn to the appropriate sentences in each case and will endeavour to explain, albeit shortly, how we have arrived at them, and why.

We deal first with Brown. We take the guideline starting point of ten years. There will be the 12-month reduction for the delay identified by the judge and appropriately made in Brown's case. From the resulting sentence of nine years, we allow a further reduction of six months for personal mitigation. We note that Brown was not of previous good character. We are prepared to assume that, although the judge did not explain why he allowed a full one third discount, nevertheless it was appropriate and we apply it. Applying a full one third discount to a notional sentence after trial of eight and a half years results in a sentence of 68 months' imprisonment (five years and eight months).

We turn next to Moss. We take the guideline starting point of ten years. There is no reduction for delay in his case. His previous good character reduces the notional sentence after trial to one of nine years for the indictment offences. Again, we apply the full ten per cent reduction allowed by the judge, which results in a sentence of 97 months' imprisonment (eight years and one month). The subsequent offence from August 2022 required a consecutive sentence, and, for the reasons we have already explained, we do not interfere with the sentence of 12 months' imprisonment. The resulting total sentence for Moss is one of nine years and one month's imprisonment.

For the reasons we have given we grant leave. Brown's sentence of 46 months' imprisonment on Count 1 will be quashed and replaced with a sentence of five years and eight months' imprisonment. The concurrent sentence of 12 months' imprisonment on Count 4 remains unchanged.

Moss' sentence of 61 months' imprisonment on Count 1 will be quashed and replaced with a sentence of eight years and one month's imprisonment. The concurrent sentence of 12 months' imprisonment on Count 7 remains unchanged. The consecutive sentence of 12 months' imprisonment on the committal offence will also remain unchanged. The total sentence for Moss is now one of nine years and one month's imprisonment.