Branton-Speak, R. v [2006] EWCA Crim 1745

Case No 200601612 A6

[2006] EWCA Crim 1745

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 27th June 2006

Strand

London, WC2

B E F O R E:

LORD JUSTICE RIX

MRS JUSTICE COX DBE

SIR MICHAEL WRIGHT

(Sitting as a judge of the Court of Appeal Criminal Division)

Between

R E G I N ACrown

-v-

Between

CORY BRANTON-SPEAK

Computer Aided Transcript of the Stenograph Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

MR J LYNN appeared for APPELLANT

J U D G M E N T

SIR MICHAEL WRIGHT: On 22nd June last year this appellant, Cory Branton-Speak, appeared before the Crown Court at Southwark and pleaded guilty to four counts on an indictment relating to the possession of illegal drugs. Some eight months later, on 15th February of this year, he appeared before the same court and pleaded guilty on re-arraignment to a further count of possession of Class A drugs with intent to supply. On 15th March this year he was sentenced by His Honour Judge McKinnon to 18 months' imprisonment under count 2 of the indictment for possession of cocaine with intent to supply, and on four further counts of unlawful possession of Class C drugs (namely Diazepam, Nitrazepam, Lorazepam and Alprazolam, all drugs of the Benzodiazepine family), he was sentenced to one month's imprisonment concurrent to each other and concurrent to the sentence on count 2, making a total of 18 months' imprisonment in all. He now appeals against that sentence, and in reality against the sentence imposed on count 2, by leave of the single judge.

[2]There appeared at the Southwark Crown Court with this appellant another man, Stephen Keefe, who pleaded guilty on re-arraignment to one count of simple possession of 107 milligrams of cocaine. He was fined £1250, with 30 days' imprisonment in default of payment.

[3]The background to these convictions can be relatively briefly stated. On 15th October 2004 the police received information from an internal investigator at the BBC about e-mails that were passing between employees at the BBC and the television channel MTV. These included e-mails between the appellant, who worked at MTV, and his co-accused Keefe, who worked at the BBC, and which referred to a party which was to be held at the appellant's home in Soho. The e-mails stated that there would be large amounts of drugs on the premises. The e-mails were fairly lightly coded, with words relating to drugs being misspelt, presumably in order to avoid alarms being raised on the BBC's e-mail system.

[4]At 8.40 on the evening of 15th October, police officers executed a warrant at the appellant's home in Old Compton Street. At that time only the appellant and Keefe were present. In the middle of the lounge was a mirror with 107 milligrams of cocaine set out in a line. Next to it was a rolled up £5 note and a credit card. We take it that it is not necessary to explain the purpose for which those two articles were needed. Keefe was sitting directly in front of the mirror.

[5]The appellant, who opened the door to the police, stated "It's mine, it's cocaine". These drugs founded the count of possession of cocaine upon which Keefe was arrested, charged and subsequently sentenced.

[6]When the appellant was arrested and cautioned he made no reply but simply said "I'll tell you where the rest is". He was told that the flat would be searched and he pointed to a clear plastic bag on top of a cooker which contained nine wraps of cocaine, amounting to a total of 6.13 grams (the purity is not disclosed). In addition, and this was the subject of the charges relating to the Class C drugs, a number of prescription drugs were recovered from the bedroom which the appellant said he had obtained from a chemist in India. Other tablets containing various Benzodiazepine drugs were also found in the lounge.

[7]When he was interviewed, the appellant read out a prepared statement in which he stated that he had been in possession of all the drugs but had not intended to supply. Thereafter he made no comment to questions asked. When interviewed again on 13th December, he made no comment about the e-mails which referred to the party and the fact that he was the purchaser of the drugs which were to be consumed at the party. When charged on 2nd February, he simply said "There was no intention to supply". That contention of course was not maintained in the light of his subsequent plea.

[8]The basis of his plea was set out in a document accepted by the prosecution and signed by counsel for the Crown and for the appellant. The basis is as follows:

"The defendant Cory Branton-Speak pleads guilty to count 2 on the basis that the supply of any part of the quantity of drugs contained within that count would have taken place socially within the confines of a one-off private flat-warming party at his home address without any element of corruption of others and without any financial gain for himself."

[9]As I have already indicated, one guest at the party was present when the police raided the premises. In fact another man, to whom an invitation had been extended, arrived shortly afterwards, was arrested and charged, but ultimately proceedings were not continued against him.

[10]Counsel, Mr Lynn, urges upon us, and technically he is correct, that Mr Branton-Speak is a man of previous good character. In the sense that he has no previous convictions, that is true, but the contents of the pre-sentence report which was before the learned trial judge at Southwark indicates quite clearly, and indeed Mr Branton-Speak had made no bones about it, that he has been a regular and diligent user of cocaine for something upwards of ten years. Indeed, it was pointed out, possibly somewhat disingenuously, that his use of cocaine was so regular and frequent and treated so lightly by him that he had lost sight of the fact that it was not only an illegal activity, but, by virtue of such use, he was repeatedly committing a very serious criminal offence. Nevertheless, the assertion that was accepted was that the drugs had been bought to share with friends and were not being dealt with on any commercial basis.

[11]At the time of the commission of this offence this appellant was a senior executive at MTV: a high position, putting him in receipt of a very substantial salary, and one to which he had been promoted a very short time before these offences were committed. Indeed, it is suggested to us that one of the purposes of the party was not only a flat-warming, but also a celebration of that promotion. Counsel points out to us that a conviction of this gravity and the subsequent custodial sentence that was passed upon this appellant has meant that he has lost his employment with MTV. That, however, is wholly unsurprising. We are bound to point out that to engage in a course of regular drug taking while following the kind of employment that this appellant was fortunate enough to enjoy must have made him aware, particularly at the level of promotion which he had reached, and his undoubted level of sophistication and education, that the discovery that he was regularly committing offences of this kind, or even if it was on a one-off basis, which it was not, would inevitably have resulted in the loss of his employment. Further, he could hardly have been under any misapprehension that if he was the organiser of a party of this kind, and providing drugs for others to take, even though there may have been no commercial element, the likely outcome inevitably would be a sentence of imprisonment. That in turn produces the consequence which undoubtedly exists, as counsel has urged upon us: not only has the appellant lost this valuable job, but when he is ultimately released from prison he may find it extremely difficult to obtain further suitable alternative employment. It may well have to be employment at a much lower return and it may well take many years for him to recover the position that he previously enjoyed.

[12]There were before the learned Crown Court judge, and there are before us, three references written by former colleagues of the appellant at MTV, including his immediate line manager, all of whom speak of him in glowing terms with regards to his general character and his professional competence. However, when passing sentence, the learned

judge pointed out that:

"... it must be recognised that obtaining these kind of drugs for supplying to others involves going to others who are in the business of supplying of cocaine. You are thereby fuelling the distribution of those drugs which is prohibited and indeed to be deplored. Supplying cocaine in these circumstances is not a trivial matter of little consequence to anyone. By buying these drugs you are providing the supplier with the means to carry on their business, and you are assisting ... with their distribution. Anybody who involves themselves in drug dealing in this way must expect a prison sentence, whatever the position that they hold in life and their personal circumstances."

[13]Counsel submits, while conceding that a sentence of imprisonment is not wrong in principle -- he could hardly do otherwise -- he urges upon us that, in the particular circumstances of this case, the term of imprisonment that had to be passed upon this appellant could and should have been made significantly shorter. Indeed, he goes so far as to submit that an appropriate disposal of this appeal would be to substitute for the sentence passed one of such a length as would enable the appellant to be released either immediately or in the very near future. He relies principally upon the accepted basis of plea and the very serious effect upon the appellant's career and his financial circumstances that the conviction and the imprisonment has inevitably had. As a result, he submits that the sentence, when fairly scrutinised against that background, can properly be treated as manifestly excessive.

[14]Mr Lynn lays great stress upon the consequences to the appellant's career, employment and income as a result of his arrest, conviction and imprisonment to such an extent that, because of his high level of employment and his success in his career, he is in some way to be regarded as a victim. That is a description with which we, in this court, profoundly disagree. The reality is that anyone who commits a serious offence of this kind and is sentenced to a term of imprisonment will be very likely to lose his job, his employment and his income, and as a result it may be his home and his position. While the details involved may be different in individual cases, relatively speaking the exent of the catastrophe that a person brings down upon himself by committing the kind of offences that this appellant committed will be very similar in every case. There is nothing particularly special about the position that a man of high earning capacity and a senior standing in society can claim if he throws all that away by the folly of the offences that he commits.

[15]There are before this court copies of the e-mails that have been passing between this appellant and his prospective guests which were intercepted and led to his arrest and conviction. They certainly support the contention which is contained in the basis of plea that this was a purely social occasion with no commercial element involved, but they also demonstrate quite clearly that it was this appellant who had initiated the suggestion of a drugs party, was responsible for making the arrangements and, further, that he was contemplating the attendance not only of Mr Keefe, but certainly another and possibly further guests. He was the purchaser of the drugs from a dealer and he was responsible therefore for making them available to his guests. As such, of all the people who did or were going to attend that party, he bears by far the greatest share of responsibility.

[16]We are clear, as counsel realistically concedes, that in the circumstances of this case an immediate custodial sentence was not merely correct in principle, but unavoidable. We have considered most carefully the argument that in all the circumstances of the case, particularly the likely loss of the appellant's home, there is room to exercise a degree of mercy in reviewing the sentence that has been imposed in this case. Not without a good deal of hesitation, we have come to the conclusion that there can, but nothing like to the extent submitted by counsel. Our view is that justice will be served if this sentence is quashed and there is substituted for the sentence of 18 months' imprisonment a term of 12 months' imprisonment. To that extent this appeal succeeds.

LORD JUSTICE RIX: The appeal succeeds to the extent of a reduction of sentence to 12 months.

[18]Mr Lynn, thank you for your assistance.