REGINA v JORDAN DAVID NICHOLSON [2022] EWCA Crim 769
[1]There was insufficient reason for the Recorder to increase the starting point from 4½ to 6 years on counts 1 and 2.[2]There was insufficient reason for the Recorder to go outside the sentencing range of 1 year's imprisonment on count 5.[3]There was no evidence or basis for elevating harm from category 3 to 2 on count 8.[4]A sentence of 7 years before credit for plea was manifestly excessive.[5]Insufficient credit was given for the guilty pleas.[6]No reduction was made to reflect the effects of the pandemic on the appellant. (Mr Stables withdrew this ground at the start of the hearing although submitted that the knock-on consequence must be that the Recorder's adjusted starting point was even higher and wrongly so).[7]The Recorder wrongly imposed a sentence of six-and-a-half years' imprisonment instead of a sentence of around 4½ years' imprisonment and[8]The sentence was manifestly excessive in all the circumstances. Plainly there is a degree of overlap between some of these grounds. In his brief but effective oral argument, Mr Stables' headline submission was that there were no aggravating features in this case to take it effectively to the top of the sentencing range for category 3 significant role drugs matters. The Recorder, it is submitted, should have started at approximately 4½ years and then reduced the sentence further for the available mitigation. In our judgment, it was a reasonable approach to treat the offences involving offensive or prohibited weapons as part and parcel of the appellant's overall drug offending. Drug dealing is an inherently dangerous activity and weapons are often involved. The Recorder's overarching approach in treating the offensive weapons as in effect aggravating factors in relation to counts 1 and 2 was not wrong in principle. In the main, he imposed concurrent sentences for these matters. It is true that some of the concurrent sentences were too high, but in practical terms, as is accepted, that makes no difference to the outcome. Where we think the Recorder erred was in imposing a consecutive sentence on count 6 for the four knives. There was no reason for taking this hybrid approach and in doing so regard was not properly had to totality. The two drugs offences differed in as match as count 1 related to supply over the period 12 November 2020 to 17 April 2021, whereas count 2 related to what police found on this last date. Viewed in isolation from the offensive weapons these two offences warranted concurrent sentences slightly above the starting point of four-and-a-half years subject to the personal mitigation. A series of concurrent sentences ought to have been imposed for the other matters. These sentences would, as we have said, have served to aggravate the sentences imposed on the first two counts. Viewing this case in the round and having regard to totality the overall sentence on the drugs matters before credit for plea should have been 6 years' imprisonment. We reduce that by 9 months to reflect the appellant's pleas and the impact of Covid, notwithstanding the unrealistic stance that the appellant took at the Newton hearing. It follows that we allow this appeal to the following extent. On count 1, we quash the sentence of 6 years' imprisonment and substitute for it a sentence of 5 years 3 months' imprisonment. On count 2, we do likewise. We do not alter the sentences on the remaining counts save that for count 6 the sentence is 6 months' imprisonment concurrent not consecutive. The total term of imprisonment is now 5 years 3 months. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 18-22 Furnival Street, London EC4A 1JS 9. Tel No: 020 7404 1400 10. Email: rcj@epiqglobal.co.uk