Mariscotti, R v [2018] EWCA Crim 962

No: 201705387/A4

[2018] EWCA Crim 962

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 20 April 2018

Strand

London, WC2A 2LL

B e f o r e:

MR JUSTICE EDIS

Venue THE RECORDER OF CARDIFF

HER HONOUR JUDGE REES QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

CONNER MARISCOTTI

Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

Mr J Manning appeared for Appellant

Mr A Ingram appeared for Crown

J U D G M E N T

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[1]MR JUSTICE EDIS: Conner Mariscotti is now 19 years old. Having admitted five offences before the Magistrates' Court on 17 October 2017 he was committed for sentence pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. That committal was dealt with at Snaresbrook Crown Court on 10 November 2017 when a total sentence of 32 months' detention in a young offender institution was imposed, against which he now appeals by leave of the single judge.

[2]The offences were all offences of possession with intent to supply controlled drugs, contrary to section 5(3) of the Misuse of Drugs Act. Count 1 related to class A drugs (cocaine). Count 2 related to class A drugs (ecstasy). Count 3 related to class A drugs (LSD). Counts 4 and 5 related to class B drugs (cannabis). Sentences of 32 months in respect of each of the class A counts were imposed concurrently and sentences of eight months' detention were imposed concurrently also in respect of the two cannabis offences. Certain further orders were made, on which nothing now turns.

[3]These offences came to light when the police went on other wholly unrelated business to the home of the appellant on 23 August 2016. While they were there they looked under his bed and found quantities of drugs. There was herbal cannabis and a small bag of cannabis resin in a black rucksack: 408 milligrams of herbal cannabis and 2.91 grams of resinous cannabis. That resulted in the two counts relating to cannabis. They also found a quantity of white powder, some coloured tablets, some brown looking substance and a large quantity of self-seal bags. These were analysed as turned out to be the class A drugs: 1.4 grams of cocaine, four packages of ecstasy totalling 3.99 grams in 19 tablets of ecstasy and some further tablets differently coloured but of the same substance. There were two packages which turned out to be LSD and eight doses in eight packages of the same amount partially compressed in a white crystallised form. The value of the drugs was put at a street valuation at £1,724 all in. On examination some texts were found on his telephone which were relevant to drug dealing involving cannabis.

[4]The appellant has limited criminal convictions and has no criminal conviction for any offence involving controlled drugs.

[5]There was before the judge a pre-sentence report and addendum which had been prepared for other proceedings and which dated back in the case of the substantive report to 27 April 2017 and of the addendum to 16 June 2017, which gave an assessment of the appellant, as well as an assessment of the offences for which they had been prepared.

[6]The proceedings took the following course. It became clear at the first hearing in the Crown Court that there was an issue of fact between the prosecution and the appellant. The question was whether he had those drugs in order to supply them to friends on a non-commercial basis or whether he had them in order to sell them commercially. The judge decided that it was necessary for that to be resolved and a hearing was held for that purpose. The hearing took the usual form in that the judge had available the evidence on which the prosecution relied and the appellant gave evidence on oath and was cross-examined in which he supported or sought to support his account of his social only supplying. The judge rejected that evidence. He said that the quantities of class A drugs in this case were the kind of quantities that street dealers generally have available to them, although they do not normally carry that amount on the street when they are dealing. He accepted that the text messages relating to drug dealing on the mobile phone related to dealing in cannabis and did not therefore themselves establish that he had in his possession any class A drugs for the purpose of commercial supply. However, the judge said that having heard him the appellant is not a credible witness and the judge did not believe a word he had said, other than when he was talking most movingly about the bereavement that he suffered when he lost his mother when he was a child. Having reached that conclusion the court found that the appellant was dealing commercially in a very small way in class A and class B drugs. He was, as the judge put it, selling them on a hand to mouth basis. He was entirely sure that the class A drugs were in his possession for selling. The cocaine was divided into packages. The other class A drugs were also split into saleable quantities. He rejected therefore the mitigating account given by the appellant.

[7]That means, as is accepted by Mr Manning, who appears on behalf of the appellant before us and indeed appeared on his behalf before the judge, that when considering the relevant guideline the appropriate category of harm is Category 3 street dealing. Although the appellant was not actually in the course of selling on the street when he was arrested, he was arrested with his small stock from which he would subsequently intend to draw saleable quantities and take them out into the street. He was therefore a street dealer.

[8]The next exercise required of the judge by the guideline was an assessment of culpability demonstrated by role. In this case the role was either significant or lesser. The judge observed that he did not have a supervisory role because he was effectively running his own little business storing the trade goods at his home. The judge said that that was a significant role. That finding is challenged in a way to which we shall shortly turn.

[9]The judge then selected a starting point from the appropriate category for class 3 significant role of four years. The starting point in the guideline is four years six months and the range is three years six months to seven years. The judge had therefore selected a shorter starting point before plea discount than the guideline suggested. In doing so he sought to reflect both the size of the business which the appellant was running and also the mitigating features.

[10]Having gone through that second step in the guideline, the judge then moved to step 4, reduction for guilty pleas, and allowed full credit. This was, we note, an act of some generosity since the relevant guideline for credit for plea guilty pleas suggests that normally that amount of credit should be reduced by half where there has been a failed Newton hearing, as here. The one-third discount however was applied reducing the four year starting point before plea discount to the sentences which we have already set out of 32 months.

[11]Mr Manning has drafted and advanced two grounds of appeal. First, he says that the judge erred in treating the appellant as having played a significant role and therefore took too high a starting point. Had the judge been able to say that this was a lesser role, the starting point would have been three years in the guideline and the range two to four years and inevitably the sentence would have been less. The second ground is that the judge failed to give sufficient weight to mitigating factors, which includes a procedural submission to which we shall return.

[12]The single judge considering those two grounds which were before him on paper and which have been expanded before us orally, refused leave on the first ground but granted leave on the second. He did so on a particular basis which it is appropriate to set out. He said this:

"Although the procedure set out in the Criminal Practice Direction for dealing with a Newton hearing was not followed, the issue which the judge had to resolve was within a very narrow compass and was clearly defined so that everyone engaged in the hearing was aware of it. There was no injustice. The judge heard the evidence and his conclusion that you were dealing in drugs for profit, albeit on a comparatively small scale, is unassailable. You fall within the category of 'significant role' in the Guidelines. The judge said he would have imposed a total sentence of 4 years after a trial and from that he deducted a full one-third discount for your guilty pleas even after a Newton hearing in which your basis of plea had been rejected. The resulting sentence of 32 months in total for dealing in five different types of drugs is well within the acceptable range of sentences for offending of this nature. If matters stood there I would not have granted you leave to appeal. I grant leave, however, for the full court to review your sentence because your counsel says he was not given a proper opportunity to address the judge in mitigation on your behalf. You should not be optimistic about the result of your appeal. The full court might conclude that whatever the procedural shortcomings might be, your sentence is not manifestly excessive."

[13]We entirely agree with the single judge in refusing leave to argue Mr Manning's first ground of appeal. If you are running your own business, your role in it is significant. The fact that it is a small business is to be reflected in other ways in applying the guidelines to the facts of the case in accordance with the approach identified by this court in R v Healey

[2012] EWCA Crim. 1005

[2013] 1 Cr.App.R (S) 33

. It is impossible to describe a sole trader as having an insignificant role in his own business. Big or small, he is it.

[14]We therefore confine ourselves to the issue on which the single judge granted leave and briefly explain the circumstances. The judge heard the appellant in evidence and heard submissions about the issue which was live in the Newton hearing and reached a conclusion about it. However, what he did not do was to pause, announce his factual findings and then invite mitigation to be addressed to him by Mr Manning. He said:

"I am afraid Mr Mariscotti was an entirely unconvincing witness and I have no difficulty rejecting his account. Stand up then Mr Mariscotti in respect of each of the counts of possession with intent to supply ... "

In other words, there was no pause for particular consideration of the items of mitigation which this appellant may be able to deploy in seeking to reduce the sentence before plea discount below four years.

[15]We have therefore allowed Mr Manning to advance those matters of mitigation that he would have advanced before the judge had matters proceeded differently. There are eight points. First, he refers to the effect of the bereavement resulting from the death of his mother on the appellant. It has a continuing effect on his ability to form relationships. Secondly, he has no previous convictions. Thirdly, Mr Manning in-appositely, in our judgment, refers us to the credit for plea. That issue comes later, as we shall say. Fourthly, he refers to the co-operation with the police which effectively involves not disrupting or seeking to disrupt their search. Fifthly, his age. Sixthly, his limited intelligence. Seventhly, a letter of remorse which he had written to the judge. We observe that a defendant who gives evidence which is rejected at a Newton hearing can hardly be said to be overburdened with remorse in any ordinary use of the word. Eighthly, he was actively seeking employment. Mr Manning says that he would have asked the judge at that stage to order a pre-sentence report and it was conceivable that that might have resulted in a further reduction in the sentence.

[16]We accept that in the ordinary run of events there is generally a pause for some mitigation following the announcement of the findings of fact of the judge at a Newton hearing. That is not an invariable procedure. If the judge has sufficient information about the mitigation which has been presented to him, so that he is aware of all relevant points, then it may be possible to proceed as the judge did here. Whether that is right or wrong, the opportunity afforded to the appellant in this court amply rectifies any injustice which may have occurred.

[17]It is clear that all of those matters now advanced before us were well-known to the judge who had the papers and who had read to him the letter of remorse and who had just heard the appellant give evidence about himself and about his background and about the loss of his mother.

[18]In those circumstances, it is simply not the case that the judge was unaware of anything significant which might have exerted any downward traction on this sentence. So far as the pre-sentence report is concerned, in our judgment the judge having read the documents to which we have referred dating back to 2017 was very well placed indeed to appreciate that no further such document was likely to contain anything which would impact on this sentence for what is, after all, commercial dealing in a variety of class A drugs.

[19]We therefore have addressed the concern which troubled the single judge but find as a result of that exercise that there is no mitigation available to this appellant which would be capable of reducing the sentence before plea discount below four years. But even if that is wrong, there is a margin in this case in favour of the appellant because the judge gave, in our judgment, unduly generous credit for the plea of guilty. Instead of allowing full credit of 16 months he should have allowed half credit of eight months. In so doing he was no doubt attempting to reflect further all the matters which might usefully be prayed in aid on behalf of this appellant.

[20]At all events, however the sentence was arrived at, it is, in our judgment, impossible to say that on the facts of this case it is arguable that a sentence of 32 months in all was manifestly excessive or wrong in principle. Therefore, this appeal is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: Rcj@epiqglobal.co.uk