Askys, R. v [2014] EWCA Crim 2908

[2014] EWCA Crim 2908Case No 201403192/A5
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 18th December 2014
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE ELIAS
MR JUSTICE SIMON
MR JUSTICE COX DBE
Between
R E G I N ACrownv
Between
VAIDAS ASKYS
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D Kitson (Solicitor-Advocate) appeared for Appellant
J U D G M E N T

LORD JUSTICE ELIAS:

[1]On 30th April 2014 in the Crown Court at Woolwich before His Honour Shorrock, the applicant pleaded guilty to a count of possessing a controlled drug of Class A with intent and he received a sentence of thirteen-and-a-half years' imprisonment on 24th June in relation to that offence. On 14th May a separate count was added to the indictment, possession of a false identity document, and he also pleaded guilty to that offence and was given 6 months' imprisonment consecutive. So the total sentence in his case was 14 years. A co-accused, Henry Duksavius, pleaded guilty to possessing a controlled drug of Class A and he was sentenced to 9 years' imprisonment. The appellant now seeks an extension of time in which to renew his application for leave to appeal against sentence following a refusal by the single judge and of course he seeks leave to appeal.[2]Given the nature of the grounds, the facts can be stated very summarily. They involve, as we have said, a significant drug operation, involving drugs of street value of around £4.5 million.[3]There is nothing wrong with the sentence as such, as counsel concedes. He has really a single point in this appeal and it concerns the different way in which the judge dealt with the credit he was going to give for the pleas. In the case of Duksavius the judge gave credit of 33% and in the case of the applicant it was 25%. Counsel submits that in the circumstances there was no material difference between the two defendants. Each had not pleaded at the preliminary hearing and had pleaded later. It is true, as he concedes, that the plea and case management hearing of the co-defendant was earlier in time but that was because of difficulties facing counsel, it was for no good reason and essentially the judge was not entitled to draw the distinction that he did.[4]The first point to note is that there can be no complaint at all it seems to us about a reduction limited to 25% for this applicant in all the circumstances of the case. He did not plead at the earliest opportunity and in the usual way cannot expect to have full credit for his plea.[5]The judge specifically addressed the question whether the credit given to the two co-defendants should be the same and he concluded that they should not. He said in terms:
"...I am not impressed by the fact that apparently reasons are connected with your representation rather than anything else. Had you shown that you were truly remorseful of this for the word go, you in your possession could have indicated that at a much earlier stage."
[6]It is always difficult to argue disparity before the courts, particularly when a judge has dealt with a matter and addressed it directly. He was of course was in a much better place than we are to assess what credit should be given and he came to the view that he did. In addition, it has to be said that the circumstances of the co-defendant were quite different for other reasons which also have to be taken into account when looking at the sentences overall. He was given credit for other considerations which do not weigh in this case.[7]Although the matter has been put very attractively by counsel, who has made the points succinctly, nonetheless we are not persuaded that we should grant leave in this case. There was nothing wrong with the credit given to this applicant and therefore we refuse leave.