R v Paul John Smith & Anor [2023] EWCA Crim 1661

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2023] EWCA Crim 1661Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Tuesday 12 December 2023
Before
LADY JUSTICE MACUR DBEMR JUSTICE GOOSEHIS HONOUR JUDGE DREW KC(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
PAUL JOHN SMITHSTEPHEN McALLISTER__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground, 18-22 Furnival Street, London EC4A 1JSTel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MS F CLEGG appeared for Applicant McAllister. for The Applicant Smith did not appear and was not represented._________J U D G M E N T

Introduction

[1]This is a renewed application for permission to appeal sentence by Paul Smith, who is aged 52 and Stephen McAllister, who is aged 36. On 27 February 2023, in the Crown Court at Southwark, Paul Smith was sentenced to 11 years’ imprisonment by HHJ Hiddleston and, on 14 March 2023, Stephen McAllister was sentenced by the same judge, in his case, to 15 years’ imprisonment. Permission to appeal sentence was refused by the single judge.[2]Paul Smith also applies for an extension of time of 30 days in which to renew his application for leave to appeal sentence.[3]Sentences were imposed for the offences as follows:- Paul Smith, for two offences of being concerned in the supply of Class A and Class B drugs, for which he was sentenced respectively to 11 years and 5 years’ imprisonment concurrently; Stephen McAllister was sentenced concurrently for an offence of possession with intent to supply Class A drugs, and of being concerned in the supply of Class A drugs, for which he was sentenced on each offence to 15 years’ imprisonment concurrently. The Offences[4]In January 2022, the police conducted a surveillance operation on Paul Smith and his two brothers who were suspected of drug dealing. On 7 February, Paul Smith was involved in a drugs transaction after leaving premises known as Atlas House, London Road and meeting Stephen McAllister a short distance away. McAllister handed to Smith a large cardboard box which Smith placed on the back seat of his car, and then returned to Atlas House. Later that afternoon, Smith’s brothers entered Atlas House and remained there for over an hour. Smith left the premises and drove to an Oxford postcode area before later returning to London, where he was later observed to meet two other men and handed to them an object. FOLLOW ON PARA The police arrested Smith who tried to escape, but was restrained after a police Taser was used upon him. He had a bag with him, in which there was £9,000 in cash. The police recovered the keys to Atlas House, which was a one-bedroomed apartment. Inside was a large cardboard box which had been delivered to Smith by McAllister. It contained eight individually package blocks of cocaine, each weighing approximately one kilogram. The ninth block was divided and had been broken up. Evidence later demonstrated that the cardboard box had originally contained 10 kilograms of cocaine. Also on the kitchen worktop were nine blocks of cannabis resin weighing just under a kilogram. Recovery of mobile phones demonstrated that Smith and his brothers were actively engaged in supply of Class A and B drugs, but were charged with the offence of being concerned in its supply.[5]In his police interview Smith made no comment to any of the questions he was asked. The wholesale value of 10 kilograms of cocaine was between £297,000 and £362,000, with a street value considerably more.[6]On 10 March 2022 police officers observed McAllister drive a van into a car park at the rear of the home address of his father-in-law. He unloaded three heavy-looking cardboard boxes and placed them into a garden shed. When McAllister realised that he was being watched and police revealed who they were, there was a tussle between him and the police. He broke away in his attempt to escape but was apprehended shortly after. His mobile telephone was seized. On examination of the boxes in the garden shed, 75 kilograms of cocaine were found with high purity of between 88 and 94 per cent. The wholesale value of those drugs was between £2.25 million and £2.62 million, with a street value considerably higher. Evidence was recovered from McAllister’s phone which confirmed his involvement in the supply of drugs to Paul Smith on 7 February 2022, when he handed over the cardboard box which contained 10 kilograms of cocaine. The Proceedings[7]Paul Smith entered his guilty plea at the Magistrates’ Court to both offences of being concerned in the supply of drugs, being the Class A drugs observed on 7 February 2022, and also cannabis during January and February 2022. He was committed for sentence to the Crown Court, pursuant to section 14 of the Sentencing Act 2020. On 27 February 2023, Paul Smith was sentenced to his 11 years’ imprisonment.[8]Stephen McAllister was not arrested until 19 February 2022, after he was observed to have been in possession of the three cardboard boxes containing 75 kilograms of cocaine. He appeared before the Magistrates on 12 March 2022. He was sent to the Crown Court for a PTPH hearing on 6 May 2022. At that hearing McAllister pleaded guilty on a written basis which sought to confine his offending to two days only. In due course that basis was rejected and was not pursued by McAllister through to a hearing of the issues. However, the prosecution decided to charge McAllister with the 7 February offence (when he passed the 10 kilograms of cocaine to Smith). He was charged with being concerned in the supply of Class A drugs on 1 August 2022. He attended the Magistrates’ Court on 3 August 2022 and pleaded guilty to both offences in the Crown Court on 22 November 2022. He was then sentenced to 15 years’ imprisonment on both counts concurrently. Sentencing[9]In sentencing Smith, the judge concluded that the lead offence, being concerned in the supply of Class A drugs, involved him in a leading role, category 1, with a starting point of 14 years and a range of sentencing between 12 and 16 years. The judge identified Smith’s previous conviction in 2007, for offences of possession of a prohibited firearm and possession of Class A drugs with intent to supply, as an aggravating factor of seriousness. Further, the judge took into account that Smith was engaged in dealing both Class A and Class B drugs. Given the aggravating factors and after taking into account those which mitigated, a substantial uplift was required in the sentence. The judge increased it to 16½ years, slightly above the top of the range, before discounting for guilty plea by a third. A sentence of 11 years was the result, which the judge imposed for the Class A offence, with a concurrent sentence of 5 years, after guilty plea, for the Class B offence.[10]In sentencing McAllister separately for 10 March offence, the judge identified him as playing a significant role, category 1 under the guideline, providing a starting point of 10 years with a range of 9 to 12 years. The significantly aggravating factor of seriousness in McAllister’s offending was the quantity of drugs:75 kilograms of high purity cocaine. He has also had possession of a further 10 kilograms in the 7 February offence with Smith. Given that the benchmark quantity for category 1 harm under the guideline is 5 kilograms, the drugs quantity involved was significantly higher and therefore, required a substantial uplift. The judge also took into account that this was a course of behaviour and not two single occasions of offending. The judge increased the sentence to 20 years before plea discount on each offence concurrently.[11]It was contended on behalf of McAllister before the judge, that he was entitled to full plea discount of one-third. That submission was rejected by the judge. He stated: “Dealing with credit, it’s been argued that you are entitled to full credit for your pleas of guilty. I make it clear that despite the observation of others, I don’t consider myself bound by their views, nor do I consider it appropriate to afford you full credit... ... the fact remains that you didn’t indicate your guilty plea at the first opportunity where you had the chance to do so, irrespective of any other allegation or allegations the prosecution may have been considering. To quote the Guideline on Credit for Guilty Pleas, I cannot see that there was anything at that stage ‘which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect him to indicate a guilty plea.’ In fact, I’d go so far as to say the opposite in your case... You had been caught red-handed with 75kg of cocaine. You were fully aware of your guilt of that offence. You kept silent in interview and you kept silent at the Magistrates’ Court. It seems to me that you were simply waiting to see how things developed before committing yourself to anything.” to anything.” 12. Grounds of Appeal[12]Paul Smith’s grounds are as follows:- Firstly, the judge was wrong to find him in a leading role; Secondly, there is objectionable disparity in the sentence between Smith and McAllister; Thirdly, the sentence imposed was above the range for a single offence and was excessive.[13]The grounds of appeal for Stephen McAllister are upon a single issue, that the judge failed to give full discount for plea. FOLLOW ON PARA[14]In oral argument, Ms Clegg, for whose succinct and very helpful submissions we are grateful, relied on the terms of the note made on the BCM form as an unequivocal plea indication. Discussion and Conclusion[15]We deal firstly with the grounds of appeal argued by Smith. We do not conclude that the judge was arguably wrong to sentence Paul Smith in a leading role, in the offences with which he was charged and had pleaded guilty. The fact that he had been given address details to deliver drugs to different people, does not, of itself, render his role as only significant or lesser role within the guideline. The evidence demonstrated that Smith took delivery of a box containing 10 kilograms of cocaine from McAllister on 7 February 2022, which he then took to Atlas House. At that address, work began in reducing the drugs into the quantities required by customers, which were themselves significant amounts. This was wholesale dealing of high value Class A drugs. Smith went to a number of addresses playing an important role in the business, with an expectation of substantial financial advantage. Secondly, there is no objectionable disparity in sentence between his sentence and that of McAllister. The post-conviction sentences were fixed by the judge at 16½ years for Smith and 20 years for McAllister. We reject this ground also. FOLLOW PARA[16]Thirdly, while sentencing slightly outside the top of the range at 16½ years, that sentence was not excessive given the aggravating factors of seriousness, which included a previous conviction of Class A drugs supply and possession of a prohibited firearm. Although the sentence was high, it is not such as this Court will intervene because it was within a reasonable range based on a sentence guideline. Accordingly, we agree with the single judge that the application for permission to appeal sentence by Smith is not arguable. We refuse both his application to extend time and for permission to appeal.[17]We turn to the application of Stephen McAllister. It was argued before the judge, as it has been before this Court, that he should have been granted full plea discount of one-third to reduce his sentence from 20 years to 13 years and 8 months. It is conceded on his behalf that the sentence before plea discount of 20 years cannot be criticised in the circumstances of the offences - a concession which we consider to be both fair and realistic.[18]It is submitted that McAllister could not have done more in the Magistrates’ Court when it was stated that:
“He was certainly to make admissions as courier of Class A drugs.”
[19]It is argued this was an unequivocal indication of a guilty plea to the offence being charged, namely possession with intent to supply Class A drugs. Further, it is observed that the judge at the PTPH hearing on 6 May 2022, appeared to agree that a full plea discount was available to McAllister, although he was not sentenced until 14 March 2023 by a different judge. Also, that the prosecution appeared to accept that a one-third guilty plea discount was appropriate. However, the sentencing judge did not agree, as we have set out above. The judge concluded that his plea was not unequivocally expressed in the Magistrates’ Court in respect of either offence.[20]It is argued that the exception at F1 within the Guilty Plea Guideline makes provision for cases in which the accused needs further information, assistance or advice before indicating his plea. Reliance is also placed on the decision in this Court in R v Plaku [2021] EWCA Crim 568. It is argued that the note made in the Magistrates’ Court was a clear indication of a guilty plea. Further, that when he appeared before the Magistrates’ Court on 3 August 2022, in respect of the February offending with Paul Smith, no evidence had been served by the prosecution to allow him to know the case he had to meet.[21]We are not persuaded that the judge fell into error when he refused full plea discount when sentencing McAllister. Although emphasis is placed on the applicant’s use of the word “certain”, that was not unequivocal. In Plaku (paragraph 17) this Court stated:
“In a number of cases in recent years, this court has made clear that for the purposes of determining the appropriate reduction in sentence, an indication of a guilty plea must be an unequivocal indication. We endorse that principle.”
[22]An unequivocal indication of plea is one that is clear, for example, in terms that “he will plead guilty to the offence”. If McAllister wanted to say that he was going to plead guilty, he should have said so and provided a basis of plea. He would have been entitled to full credit had he done so, but he did not. There is room for uncertainty and ambiguity where the statement made on his behalf was that he would make admissions as courier. Given that he had made “no comment” to the police questions when interviewed, and said nothing more when in the Magistrates’ Court, his guilty plea at the PTPH was correctly permitted at 25 per cent for that offence. Further, we agree that the judge’s assessment that the defendant knew that his offending related to his possession of Class A drugs in a box, which he handed over to Paul Smith on 7 February 2022. The charge was known to him, and he was aware what it meant, and the opportunity to indicate unequivocally he would plead guilty was available to him, which he declined. Further, it was open to the sentencing judge to decline to follow an indication given by another judge at an earlier hearing, namely at the PTPH; equally if the prosecution repeated that indication. To do so does not render unfair or wrong the discount for plea given by the sentencing judge:it is that judge who has the task of sentencing and not another.[23]Additionally, whilst it is argued that McAllister had not been served with the prosecution evidence when he first appeared in the Magistrates’ Court on the 7 February offence, such that he should have had full credit for his later plea, this ignores the fact that he had been provided with a case summary. Therefore, he knew what he was being charged with and the evidence that was to be served. We agree with the judge therefore, that he knew what the case was about and was able to enter his plea. He did not need advice.[24]Accordingly, we are not persuaded that there is arguable merit in the ground of appeal raised on behalf of McAllister and, in the circumstances, we refuse these applications made on behalf of Paul Smith and Stephen McAllister. 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 Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk