R v Victoria Sked & Ors [2025] EWCA Crim 351

[2025] EWCA Crim 351Venue Royal Courts of Justice, Strand, London, WC2A 2LLCase No 202500005/A5, 202500006/A5, 202500007/A5, 202500008/A5, 202500009/A5, 202500011/A5 & 202500079/A5Date 27/03/2025
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Before
LORD JUSTICE MALESMRS JUSTICE YIPMR JUSTICE DEXTER DIASATTORNEY GENERAL’S REFERENCEUNDER SECTION 36 OF THE CRIMINAL JUSTICE ACT 1988
Between
REXCrownVICTORIA SKEDDefendantSIMMIE MCGINLEYDefendantROBERT WILLIAMSDefendantDARREN MORGANDefendantADAM KIRKDefendantAYESHA MARTINDefendantAND ON APPEAL FROM THE CROWN COURT AT SHEFFIELDHER HONOUR JUDGE MEGAN RHYSREX- and –JACK MCGLEN
Charlotte Hole for Solicitor GeneralGordon Stables for SkedRobert Stevenson for McGinleyRodney Ferm for WilliamsAndrew Stranex for MorganMichael Walsh (Solicitor Advocate) for KirkJames Baird for MartinGillian Batts for McGlenHearing Hearing date: 20 March 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 27 March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]We have before us an application by His Majesty’s Solicitor General for leave to refer six sentences which she regards as unduly lenient, together with an application for leave to appeal against sentence which has been referred to us by the Registrar.[2]The applications arise out of a conspiracy to convey prohibited articles into HM Prison Lindholme in Doncaster, which came to light when a prison officer, Victoria Sked, was searched on entry into the prison on 20th August 2018. In her bag there was an open Pot Noodle container which had two clingfilm packages in it. Sked was then strip-searched. Secreted in her clothing were two vials containing steroids, an iPhone, a pouch of tobacco, another mobile phone and sim card, and another package containing nicotine and MDMA. A clingfilm package containing 24.9 grams of cannabis was concealed in her body. She was then arrested and her house was searched. Pouches of tobacco, numerous mobile phones and charging cables, sim cards, cannabis wraps and a block of cannabis, and packs of cigarette papers were found. There was cannabis, skunk and 206 sheets of paper soaked in spice. In addition, just under £8,000 was recovered from her safe.[3]Needless to say, these items are all prohibited in prison. The evils to which their possession by prisoners can lead are obvious. The judge, Her Honour

Judge Megan Rhys, described them clearly in her sentencing remarks:

‘Drug use within prisons is, unfortunately, rife and their supply has long been recognised as a serious social evil. It poses a significant risk to the physical and mental health and well-being of those within the prison, spreading addiction and misery; and can, and does, lead to people being hospitalised and, on some occasions, death. The supply of drugs and other contraband items within prisons is a lucrative business and they are acknowledged as being an instrument of power, extortion and oppression. The prices of such items are significantly inflated from what they would cost on the streets given their limited availability. The courts have said on numerous occasions that drugs and drug substitutes are entirely inimical to the rule of law within prisons. They enrich and give power to ruthless prisoners who exploit others to create debts that are difficult to service without resorting to bullying and intimidation and to the commission of further crime, both inside and outside the prisons. They have an inherently corrosive and corruptive influence, they fundamentally undermine discipline and good order, and are capable of feeding the addiction of those who should be able to make use of their time in prison to become drug-free. The effect of such substances causes danger to other inmates and to members of staff, who have to deal with those under the influence of such substances. It is recognised that the evil done by drugs and drug substitutes in prison is even worse than the evil that they do in open society.’
[4]The judge was, therefore, fully alive to the extremely serious nature of the conspiracy for which she had to sentence the offenders.

The proceedings

[5]An extensive investigation followed Sked’s arrest, which resulted in all of the offenders with whom we are concerned, together with others, being identified as involved in the supply of these prohibited items into or within the prison. Three of the offenders, Simmie McGinley, Robert Williams and Jack McGlen, were serving sentences in the prison. Another three, Darren Morgan, Adam Kirk and Ayesha Martin, were organising the supply of contraband from the outside or dealing with the financial aspects of the conspiracy.[6]Although some of the conspirators pleaded not guilty and were tried, in a trial which took place in July 2024, the offenders with whom we are concerned all pleaded guilty, albeit at different stages of the proceedings. They were sentenced in the Crown Court at Sheffield by Judge Rhys on 6th December 2024 to terms of imprisonment ranging between 18 months and 58 months. There was, therefore, a period of some 6 years and 4 months between the arrest of Sked and the date of sentence.[7]That period of delay can be broken down into distinct periods. First, there was a period between the arrest of Sked in August 2018 and the issuing of summonses to all defendants in April 2022, a period of some three years and eight months. To some extent this delay was because the investigation of the conspiracy within the prison was inhibited by the Covid pandemic in 2020 and 2021, although we note that Covid only struck in March 2020, which was already some 17 months after Sked had been arrested.[8]Second, the case was then due to come to trial in September 2023. It was only at or shortly before that stage that some of the offenders with whom we are concerned pleaded guilty. In the event, however, the trial of the remaining defendants could not proceed due to counsel not being available.[9]Third, there was then a further period, until July 2024, when the trial of the remaining defendants (not those with whom we are concerned) took place. One of the offenders with whom we are concerned, Robert Williams, pleaded guilty on the first day of the trial.[10]Sentencing of all offenders then took place, after a hearing lasting four days, on 6th December 2024.

The issue on the reference

[11]The Solicitor General does not challenge the judge’s assessment of the culpability of the various offenders or the roles which they played in the conspiracy. Nor does she challenge the judge’s decisions as to the notional sentences which would have been imposed before mitigation and credit for plea or the amount of such credit. The case that the sentences imposed were unduly lenient depends on a relatively narrow point, namely that the judge made an excessive reduction in the sentences to take account, in two cases (McGinley and Williams), of time served as a result of recall to prison following release on licence, and in all cases, of the delay between the discovery of the conspiracy as a result of the arrest of Sked in August 2018 and the sentencing in December 2024.[12]For that reason, although we shall need to say something about the involvement and circumstances of each of the offenders with whom we are concerned when we consider their individual cases, it is unnecessary at this stage to describe the conspiracy in greater detail. We should note, however, that overall the conspiracy involved the supply of both Class A and Class B drugs, as well as other contraband items, but the periods in which the various offenders were involved differed, and not all of them were alleged to have conspired to supply Class A drugs.[13]After describing the conspiracy and making the comments which we have already quoted about the evils of drugs in prison, the judge noted that there was no Sentencing Council guideline for conveying prohibited articles into prison, but that when those prohibited articles are drugs, the applicable drug offence guideline should be considered. Supplying to inmates in prison should be treated as Category 3 for harm, as indicated in the drugs guideline. She noted also that the maximum sentence for conveying prohibited articles into prison is 10 years, which is less than the maximum sentence for supplying drugs; and that deterrence is an important aspect of sentencing in cases involving the conveying of contraband items into prison. She referred also to a number of other relevant guidelines.[14]Dealing with the question of delay, the judge said – and we agree – that this was a complex sentencing exercise, made more difficult by the substantial delay in the case reaching a conclusion. She continued:
‘In determining the appropriate sentence, I have taken into account the substantial delay that there has been in this case and applied a discount to reflect that delay as appropriate in each defendant’s case. But this is not an exact mathematical calculation; it is designed to ensure that the sentence imposed is just and proportionate.’
[15]The judge then turned to deal with each of the individual defendants before her. Her approach in each case was to take the most serious offence as the lead offence, making other sentences for the conspiracy concurrent (although in two cases she had to impose sentences for other offending transferred from Crown Courts elsewhere, and in those cases she made those sentences consecutive), to identify the applicable starting point in accordance with the guidelines, to adjust it upwards where appropriate as a result of aggravating factors, and to identify the sentence which she would have imposed ‘had I been sentencing you at a time closer to the commission of the offences’. From that notional sentence, she then made a reduction to take account of credit for plea, delay and mitigation and, in two cases, for time spent in prison on recall. No doubt this approach reflected the submissions which were made to her. However, the judge did not identify separately how much of the reduction which she made was attributed to delay and how much to personal mitigation.[16]For present purposes, there are three relevant aspects of this approach to which we must draw attention. The first is that it is not possible in many cases to identify precisely how much of the reduction made by the judge is attributable to the delay (or, where applicable, the recall).[17]The second is that the effect of the judge’s approach appears to be to make a reduction for delay and mitigation after giving credit for plea. Normally, however, the appropriate course is to identify the sentence which would have been imposed after trial, taking account of both aggravating and mitigating factors (including delay where applicable), and to apply the discount for credit for plea to the sentence thus arrived at. On these applications the submissions on behalf of the Solicitor General have followed the approach of the judge, so that the reduction in the sentence to take account of delay has been calculated (and has been submitted to be excessive) only after applying the appropriate discount for a guilty plea. Counsel for the offenders have not challenged this approach, not surprisingly as it generally works to their clients’ advantage. In view of the fact that this is the way the case has been argued and we have heard no submissions to the contrary, we propose to adopt the same approach in considering the issue of undue leniency rather than to attempt a recalculation for ourselves. However, we should not be taken to endorse this approach as appropriate for the purpose of other cases. Indeed, it appears to us to be wrong.[18]Third, although the judge referred to the sentence adjusted upwards from the applicable starting point to take account of aggravating factors as the sentence which she would have imposed if she had been sentencing at a time closer to the commission of the offences, the notional sentence which she described in this way was not in fact the sentence which she would have imposed if she had been sentencing at that time. If she had been sentencing closer to the time of the commission of the offences, her actual sentence at that time would still have had to be adjusted downwards, where appropriate, to take account of mitigation and guilty pleas. To that extent, therefore, the judge’s explanation of what she would have done if she had been sentencing closer in time to the commission of the offences was inaccurate.

Delay

[19]The Sentencing Council ‘General Guideline: overarching principles’ recognises that ‘delay since apprehension’ is a relevant factor for a sentencing judge to take into account. The guidance notes:
‘Where there has been an unreasonable delay in proceedings since apprehension which is not the fault of the offender, the court may take this into account by reducing the sentence if this has had a detrimental effect on the offender.’
[20]The effect of such delay was further considered in R v Timpson [2023] EWCA Crim 453:
‘23. The situation here was wholly different to the situation which is all too common in criminal proceedings. Offences are committed, they are reported promptly to the police who investigate them with reasonable expedition. The investigation concludes with evidence available to justify charging of the offender. Then, many months, sometimes years, pass before the offender is charged. That type of delay often will result in some reduction in the eventual sentence, particularly in cases where the offender pleads guilty. We observe that the reduction would be most unlikely to be as great as 25 per cent, particularly where the offences were serious, but some reduction would follow. In this case, the offences were reported to the police in May 2020, the offender was charged in November 2020, he made his first appearance in the Crown Court in January 2021. That chronology does not reveal any significant delay, rather it is the progress to be reasonably expected in a case of this kind.’
[21]It is apparent from these citations that the effect, if any, of delay on the appropriate sentence will be highly fact-specific. What might be considered ‘normal’ delay, inherent in the criminal investigation process, will be unlikely to attract any reduction in sentence. In cases where the delay can properly be regarded as unreasonable, an important consideration will be whether the delay has had a detrimental effect on the offender. Where there is no such detrimental effect, there may be no justification for any reduction. In a case where the offender pleads guilty, or gives a firm indication of a guilty plea, at the outset, there is likely to be a stronger case for taking the delay into account, particularly if in the meanwhile there is strong evidence of rehabilitation which, in any event, would be a highly relevant factor in mitigation. On the other hand, it is unlikely that a reduction in sentence will be appropriate in the case of an offender who delays a guilty plea until the last moment, particularly if it appears that he has been doing so as a way of gaming the system. As indicated above, the guideline on delay requires consideration of whether the offender has contributed to the delay and is in that sense at fault. Nor is a reduction, and certainly not a significant reduction, likely to be appropriate if an offender has taken advantage of the delay to commit further offences.[22]We see no reason to doubt the comment in Timpson that a reduction for delay, particularly where the offence is serious, is unlikely to be as great as 25%. However, this is not and does not purport to be an inflexible rule of law. It is, moreover, a recognition that a reduction in sentence for delay in itself is likely to be relatively modest, having regard to the general purposes of sentencing. The position may be different when the consequence of delay has been that the offender, perhaps young and immature at the date of commission of the offence, has demonstrated in the interim positive rehabilitation and has become in effect a different person from the person who committed the offence. In such a case the court will need, in what may be a difficult decision, to weigh the need for punishment of what may be a serious offence against other factors particular to the offender.[23]In the present case the Solicitor General has pointed out that the reduction made by the judge for the effect of delay has sometimes appeared to exceed the 25% figure referred to in Timpson. Because of the approach which the judge adopted, not identifying separately the reduction made as a result of delay, it is not always possible to be sure whether this is the case. However, where this has been suggested, we have considered carefully, effectively as a sense check, whether this demonstrates that the judge fell into error.[24]It follows from what we have said that although all of the offenders with whom we are concerned can be said to have experienced delay in the sense that they were sentenced in December 2024 for offences committed as long ago as 2018, the effect of this delay upon them, and the extent to which a reduction in their sentence is appropriate as a result, will be likely to vary from one offender to another.

Recall to prison

[25]Parliament has provided that time spent on remand in custody for the offence for which an offender is sentenced will count automatically towards that sentence, but that such time will not count if an offender ‘was also detained in connection with any other matter’: section 240ZA(4) of the Criminal Justice Act 2003 as amended. The effect is that, when a prisoner is released on licence and then recalled to prison, time served awaiting trial for a new offence will not count automatically towards any sentence of imprisonment which may be imposed for the new offence. That is because during the time in question the offender was ‘detained in connection with’ his original offence as well as the new offence.[26]However, as explained in R v Kerrigan [2014] EWCA Crim 2348 at [56], ‘a judge retains the discretion to do justice on the particular facts of the case, for example in the case of excessive delay, and may therefore reduce an otherwise appropriate sentence accordingly’. This may be done, as a matter of discretion, by reducing the sentence which would otherwise be imposed for the new offence to take account of time served on recall awaiting trial for that offence.[27]Once again, the circumstances in which such a reduction will be appropriate and the extent of any reduction will be highly fact-specific. A reduction is more likely to be appropriate if the only reason for the recall is the fact that the new offences being sentenced have been committed. In such a case the submission that an offender has in effect already served time in prison for the offence being sentenced, which he would not have served but for the delay, will have greater weight than in a case where the recall was for other matters. But the exercise of judicial discretion in order to ensure that justice is done on the particular facts of any given case should not subvert the policy decision made by Parliament that time served on recall does not count automatically towards the new sentence. A measured approach is required. There is no arithmetical formula which can be applied generally. The objective will always be to find the sentence which is just and proportionate on the particular facts of the case.

The individual offenders

[28]Having made these general observations, we turn to the circumstances of the various offenders, recognising that the delay (and in two cases, the recall) has impacted upon them in different ways. We will deal with the offenders in the order in which they appear on the indictment.

Victoria Sked

[29]Victoria Sked is now 33, and was 26 at the time of these offences. She was employed as a prison officer at HM Prison Lindholme from January 2018 until her arrest in August 2018. She had no previous convictions.[30]She had been a drug user, however, as a result of being introduced to drugs by her father ‘to take the pain away’ when her mother was dying. When she struggled to cope as a prison officer, she turned to alcohol and drugs which caused her to fall into debt. People within the prison were aware of this vulnerability and exploited it to pressurise her to take contraband items into the prison for payment. She succumbed to that pressure. However, at the time when she was arrested, she had already taken steps to bring the situation to an end by handing in her notice. In fact the search which resulted in her arrest occurred only a few days before what was to have been her last working day in the prison.[31]Proceedings were commenced against her in 2018, shortly after her arrest. She indicated from the outset that she would plead guilty. She was remanded, partly in custody and partly on bail with a qualifying curfew, but the proceedings were discontinued so that investigation of the conspiracy as a whole could take place. She was then remanded on bail until being sentenced on 6th December 2024.[32]The judge treated Sked as having played a leading role, having abused a position of trust and responsibility. The judge took the most serious offence as the lead offence, with a starting point of 8 ½ years. Supply of drugs into prison was an aggravating factor and there were multiple offences: three counts of conspiracy to convey prohibited articles into prison and two substantive counts, as well as a count of being concerned in an arrangement to facilitate the use of criminal property.[33]The judge said that if she had been sentencing at a time close to the commission of the offences, the sentence would have been 8 years’ imprisonment. As with the other offenders to whose cases we shall come, this was not in fact the sentence which the judge would have imposed. Rather, it was a notional sentence, adjusting the starting point upwards to take account of aggravating factors, but taking no account of mitigation or credit for plea. The judge continued:
‘Giving you credit for your guilty pleas and the delay that there has been, and taking into account everything that I have heard in mitigation, I impose a sentence that is substantially lower than it would otherwise have been, namely one of 52 months’ imprisonment. However, I reduce that sentence further by a period of five months to reflect the time that you spent on remand and on qualifying curfew when the proceedings were initially commenced in 2018, which reduces the overall sentence to one of 47 months’ imprisonment, or three years 11 months.’

Submissions

[34]The submissions made on behalf of the Solicitor General accept that a sentence of 8 years’ imprisonment would have been appropriate after categorising the offender within the applicable guidelines and making an upward adjustment for aggravating features. It is accepted also that credit of one third for the offender’s early guilty plea was appropriate, thus reducing the sentence to 65 months, and that it was appropriate to reduce this further by 5 months to take account of the time spent in custody or on qualifying curfew, as this period would not count automatically against the sentence, and would have been credited if the original proceedings against the offender had taken their course. These deductions would result in a sentence of 60 months or 5 years.[35]It is said, however, that the sentence of 47 months was unduly lenient because the further reduction of 13 months for delay and personal mitigation was excessive. However, Ms Charlotte Hole for the Solicitor General accepted in argument that some reduction for personal mitigation would have been appropriate. The Solicitor General’s challenge, therefore, is to the credit given for delay amounting to an uncertain period which on any view is something less than 13 months.

Decision

[36]This offender indicated from the outset that guilty pleas would be tendered to appropriate charges and she pleaded guilty at the earliest opportunity. None of the delay which has occurred is her fault, although it would inevitably have taken some time to investigate and bring to court a conspiracy on this scale. The offender, however, was always anxious to serve her inevitable sentence as soon as possible. In a real sense, she has had to put her life on hold for six years, unable to make long term plans. Moreover, she has very considerable personal mitigation, to which the judge referred. Despite having made a number of suicide attempts (we were told that on one occasion she was found by a police officer hanging by the neck from a tree), she had made what the judge described as ‘strident efforts to turn your life around, despite continuing to struggle with your mental health and knowing that these matters were hanging over you’. She had obtained employment, despite the difficulty of her position, and had a supportive partner, with whom she was planning a future upon her eventual release. She had also been able to rebuild relationships within her family and had stopped using drugs and alcohol. The judge accepted that she was remorseful about her actions.[37]In these circumstances there is considerable force in the submissions made on this offender’s behalf by Mr Gordon Stables that personal mitigation alone would justify a reduction in sentence of the order of 13 months, and that if the offender had been sentenced within a reasonable time of her arrest, she would have been released some years ago.[38]Overall, in our judgment, the reduction of 13 months to take account of personal mitigation and delay cannot be regarded as unduly lenient. The application to refer the sentence is refused.

Simmie McGinley

[39]Simmie McGinley is now 31, and was 24 at the time of these offences. At that time he was a serving prisoner, serving a sentence of 10 years imposed in 2016 for three offences of robbery and three offences of possession of an imitation firearm with intent to cause fear of violence. These were the latest of 17 convictions for 32 offences recorded between 2006 and 2016. He was a prisoner on the wing where Sked was working and was involved in the selling of drugs within the prison. It was he who put pressure on her to smuggle contraband into the prison.[40]McGinley was released on licence halfway through the sentence for his previous offences in March 2021, but was recalled in September 2021 as a result of unrelated matters. However, it was decided on 24th August 2022 that no further action would be taken in connection with these matters. Nevertheless, in the meanwhile McGinley had been summonsed for the present conspiracy offences and as a result he remained in prison on recall until 6th December 2024, the date of his sentence. He was, therefore, on recall in prison as a result of these offences for a total period of about 2 years and 4 months.[41]He pleaded guilty at the plea and trial preparation hearing on 9th November 2022 to four counts of conspiracy to convey prohibited articles into prison, one count of being concerned in an arrangement to facilitate the use of criminal property, and one count of possession of a mobile phone in prison.[42]McGinley was sentenced to a total of 18 months’ imprisonment. The judge assessed him as having played a leading role and took a starting point of six years’ imprisonment for the most serious offence, treating that as the lead offence with concurrent sentences on the other counts. She treated the supply of drugs in prison as an aggravating factor, as also was the use of a contraband phone. He had recent convictions. Taking account of these factors, and of the fact that she was sentencing for a number of offences, the judge said that if she had been sentencing at a time close to the commission of the offence, the sentence would have been 8 years’ imprisonment. She continued:
‘But, giving you credit for your guilty pleas and the delay that there has been, which has not been of your making and taking into account everything that I have heard in mitigation and also taking into account the substantial period of time that you have been subjected to recall for these offences, which were committed before you were released, I impose a sentence which I accept is substantially lower than it would otherwise have been, namely one of 18 months’ imprisonment.’

Submissions

[43]The Solicitor General does not challenge the notional sentence of 8 years taking account of the offender’s role and the aggravating features, or the credit of 25% for his guilty plea. That would result in a sentence of 6 years. She accepted in the written Reference that a reduction of 3 years would have been within the judge’s discretion to take account of time served on recall, but submitted that the further reduction of 18 months to take account of delay involved an element of double counting and resulted in an overall sentence (18 months) which was unduly lenient. When asked at the hearing how this reduction of 3 years to take account of time served on recall had been calculated when the time served on recall for the conspiracy offences was 2 years and 4 months, Ms Hole answered that the written Reference had been unduly generous in this respect.[44]On behalf of McGinley, Mr Robert Stevenson emphasised that McGinley had provided the police with an alibi, which had been accepted, showing that he could not have been guilty of the unrelated drug matters which had caused his recall to prison. He accepted that the period between September 2021 when McGinley had been recalled and August 2022 when it was decided that no further action would be taken would not necessarily attract any discount, as the recall could be attributed to those unrelated matters. But from August 2022 onwards McGinley had spent some 2 years and 4 months in prison solely as a result of the present conspiracy offences, which was equivalent to a sentence of 4 years and 8 months. There was in addition some personal mitigation, including the fact that he had used his time in prison well, had matured in custody, was remorseful and had not been involved in any further behaviour of the kind for which he was being sentenced.

Decision

[45]The challenging issue for the judge was how to take appropriate account of the fact that McGinley had been recalled to prison for a period of 2 years and 4 months as a result of these offences. He had pleaded guilty at the PTPH and could not, therefore, be regarded as responsible for the delay which occurred thereafter. It was a relevant factor to take into account that his time served on recall was equivalent to a sentence of 4 years and 8 months. Nevertheless, a sentence of only 18 months’ imprisonment for offences of this seriousness appears lenient at first sight and requires careful scrutiny.[46]In our judgment this sentence was unduly lenient. While we recognise the force of the point that McGinley can be said to have served the equivalent of a sentence of 4 years and 8 months, simply to apply a discount of that length to the notional sentence of 6 years which the judge would otherwise have passed would risk cutting across the decision by Parliament that such time should not count automatically.[47]Mr Stevenson acknowledged that his submission would lose its force if McGinley had committed further offences while serving the licence element of his previous sentence after his release from prison in March 2021, but submitted that the position was different because the further offences had in fact been committed while serving the custodial element of that sentence and McGinley had committed no further offences after his release on licence. In our view that is a distinction which it is hard to justify. The fact is that McGinley chose to commit further serious offences while serving his previous sentence, and that would remain the case irrespective of whether those further offences were committed during the custodial or the licence period of the previous sentence.[48]In our judgment the appropriate sentence in this case would be of the order of 30 months. That reflects appropriately the time which McGinley has served on recall, recognises the delay which has occurred for which McGinley does not bear responsibility and gives appropriate credit for his personal mitigation.[49]Accordingly we quash the sentence of 18 months’ imprisonment imposed on count 3 of the indictment and impose in its place a sentence of 30 months. There is no need to adjust the concurrent sentences on the other counts.

Robert Williams

[50]Robert Williams is now 36, and was 29 at the time of these offences. At that time he was a serving prisoner, serving a sentence of 6 years imposed in 2018 for conspiracy to supply cocaine and for money-laundering. These were the latest of eight convictions for 14 offences between 2011 and 2018.[51]At the time when he became involved in the conspiracy, it was already an established enterprise, but he joined in voluntarily and played an active role, including the use of a mobile phone to make arrangements for the supply of drugs into the prison.[52]He was released from his sentence in July 2021. He had been interviewed concerning the present offences in 2019, but was only summonsed in April 2022. On his release, he went back to his family in Leeds, obtained employment and formed a relationship which he regarded as serious.[53]Initially he pleaded not guilty to the present offences and only changed his plea to guilty on 2nd July 2024, the first day of the trial.[54]Meanwhile, in October 2023, Williams was arrested for unrelated drugs matters and was recalled to prison in December 2023. He remained in prison on recall until 6th December 2024, the date of the sentence. The recall led to the end of his relationship and he also has physical health issues which renders confinement more difficult for him. We were told that he has not been charged for the matters which led to his arrest in October 2023 and that no decision has yet been made whether they will be taken further.[55]The judge treated Williams as having played a significant role but towards the top end of the applicable range. Supply of drugs into prison was an aggravating factor, as were his previous convictions and the use of a contraband phone. She said that, if she had been sentencing at a time closer to the commission of the offences, she would have imposed a sentence of 5 years. She continued:
‘Giving you credit for your guilty pleas and the delay that there has been, some of which has not been of your making and taking into account everything that I have heard in mitigation, as well as the period of recall that there has been which will not count towards the overall sentence, I impose a sentence in your case that, again, is substantially lower than it would otherwise have been, namely one of 22 months’ imprisonment.’

Submissions

[56]The Solicitor General accepts that a notional sentence of 5 years before giving credit for plea would have been appropriate, although we would observe that this does not take account of the seriously aggravating factor that this offender’s previous offence, as a result of which he was in prison, was itself for drug supply offences. The Solicitor General accepts also that a reduction of 10% for credit for plea was appropriate, reducing the sentence to 54 months, and that a reduction of 12 months to take account of time served on recall was within the judge’s discretion. That would mean a sentence of 44 months. She submits, however, that the further reduction of 22 months, resulting in a sentence of 22 months, was excessive and resulted in a sentence which was unduly lenient.[57]Mr Rodney Ferm on behalf of Williams sought to justify the judge’s sentence by pointing out that 12 months served on recall was equivalent to a sentence of 2 years, that a reduction of 2 years from a notional sentence of 54 months after giving credit for plea would mean a sentence of 30 months, and that the difference of 8 months between 30 months and the 22 months which the judge imposed was not significant. It could be accounted for either by reference to other matters such as the offender’s mitigation or alternatively the court should not tinker with the sentence by increasing it to 30 months.

Decision

[58]We do not accept these submissions. As we have explained, the judge’s notional sentence of 5 years was already arguably generous and there is no entitlement to a reduction in sentence amounting to twice the actual period served on recall. In this case the recall was for other matters and it remains to be seen whether those other matters will be proceeded with. In contrast with McGinley’s case, this is not a case, therefore, where it can presently be said that the time served on recall was necessarily attributable to the conspiracy offences. As the Solicitor General has been prepared to accept that a reduction of 12 months to take account of the time on recall was within the judge’s discretion, we will proceed on that basis. However, we do not accept that any significant further reduction for delay is appropriate in circumstances where Williams delayed his guilty plea until the last possible moment and there is only very limited personal mitigation.[59]In our judgment the shortest appropriate sentence in the circumstances would have been of the order of 40 months’ imprisonment. Accordingly we quash the sentence of 22 months’ imprisonment imposed on count 3 of the indictment and impose in its place a sentence of 40 months. There is no need to adjust the concurrent sentences on other counts.

Darren Morgan

[60]Darren Morgan is now 45, and was 38 at the time of these offences. He had 47 convictions for 78 offences ranging between 1993 and 2024.[61]Morgan was an associate of Williams, with whom he had previously shared a cell in prison, but at the time of the conspiracy offences he was in the community. His role in the conspiracy was to arrange for spice paper to be sent into the prison and to visit Williams with the latter’s girlfriend in order for drugs to be passed between them. He had financial links to many inmates at the prison and laundered money for financial gain.[62]Morgan pleaded not guilty at the PTPH on 9th November 2022, but changed his plea to guilty on 21st April 2023, some months before the trial was due to begin. The judge said that she would give credit of 22% as a result.[63]In addition the judge had to sentence Morgan for two offences of possessing Class A drugs with intent to supply to which he had pleaded guilty at a PTPH on 21st September 2023 at Preston Crown Court, these offences having been committed on 21st January 2022 after his release on licence and at a time when Morgan knew that he was under investigation for the conspiracy offences.[64]The judge treated Morgan as having played a significant role, towards the higher end of the range. His convictions and the fact of supply to a prison were aggravating factors. Taking the conspiracy offences and the Preston offences together, she said that if she had been passing sentence closer to the date of commission of the offences, the sentence would have been 8 ½ years. She continued:
‘However, giving you credit for your guilty pleas and taking into account the delay, which has not been of your making, I impose a sentence which, again, is substantially lower than it would otherwise have been, and the sentence is therefore one of 4 years and 10 months’ imprisonment.’
[65]The judge explained that this represented 22 months in total for the conspiracy offences and 36 months for the Preston offences, these two sentences being consecutive.[66]Three points may be noted. The first is that in this offender’s case the judge did not find it necessary to make any reduction for mitigation other than delay. Second, there was no real delay in dealing with the Preston offences, so there was no justification for reducing the sentence for those offences to take account of delay. Third, the judge did not say what sentence she would have imposed if dealing with the conspiracy offences alone, but it is reasonable to suppose that she made some adjustment to take account of totality.

Submissions

[67]The Solicitor General accepts that a sentence of 8 ½ years for all of Morgan’s offending would have been appropriate, and that credit for plea of about 25% was appropriate. Taking the most serious of the conspiracy offences, the supply of Class B drugs into prison, as the lead offence would result in a starting point of 4 years’ custody and a range between 2 ½ and 5 years. Giving credit for plea for this offence would reduce the sentence to something of the order of 3 years, which meant that the judge must have given a further reduction of about 14 months as a result of the delay. This was unduly lenient.[68]Mr Andrew Stranex for Morgan pointed to the length of the delay, including the significant gap between arrest and charge, but was unable to identify any real detriment which this had caused this offender. He acknowledged, realistically, that Morgan had continued to offend after his release from prison. Hence the need to sentence for the Preston offences.

Decision

[69]Dealing first with the conspiracy offences, the Solicitor General was prepared to accept a starting point of 4 years for the supply of Class B drugs and did not submit that this required adjustment upwards in order to take account of the offender’s previous convictions and the supply of drugs into prison. We regard that as a somewhat generous approach. If a discount of 25% is then applied (although in fact the judge said that she would allow 22%), the result is a sentence of the order of 3 years.[70]Unlike some of the other offenders with whom we are dealing, Morgan has not used the time since the commission of these offences to rehabilitate himself. On the contrary, he has taken the opportunity afforded by this delay to continue his offending by supplying Class A drugs and has in addition accumulated convictions for possessing Class B drugs, failing to provide a specimen while driving or attempting to drive, and failing to comply with the requirements of community orders. In these circumstances we can see no justification for making any significant reduction in his sentence on account of delay and there was no other relevant mitigation. If the conspiracy offences had stood alone, therefore, a sentence of about 3 years or 36 months would have been the shortest sentence which would have been appropriate.[71]While the position is complicated to some extent by the fact that the judge had also to sentence for the Preston offences and did not set out in detail how she had arrived at the sentence for these, it is apparent that the starting point for supply of Class A drugs would have been 4 ½ years or 54 months, that some increase would be required to take account of the offender’s previous convictions, and that a reduction of 25% for credit for plea would take the sentence to something in excess of 40 months. In passing a sentence of 36 months, the judge made a further reduction of not less than 4 months, most likely in order to take account of totality. The Solicitor General’s submitted that this was generous, albeit not unduly lenient in itself. We accept that submission.[72]If these two sentences, a notional 36 months for the conspiracy offences and the actual 36 months for the Preston offences, are added together, the total sentence would be one of 6 years. In our judgment this requires no further adjustment for totality, bearing in mind that an element of totality has already been taken into account in arriving at the Preston sentences and that the sentences are already on the lenient side. It is apparent, therefore, that the sentence of 22 months for the conspiracy offences was indeed unduly lenient.[73]Accordingly we quash the sentence of 22 months imposed on count 3 on the Sheffield indictment and impose in its place a sentence of 36 months. This will be consecutive to the sentences of 36 months imposed for the Preston offences. There is no need to adjust the concurrent sentences on the remaining counts. Accordingly the overall sentence will be increased from 4 years 10 months to 6 years.

Adam Kirk

[74]Adam Kirk is now 35, and was 28 at the time of these offences. He had 34 convictions for 61 offences ranging between 2002 and 2021. On 4th March 2015 he was sent to prison for 14 months for an offence of dangerous driving, but had been released by the time the conspiracy offences occurred.[75]Kirk was also an associate of Williams. His role in the conspiracy was in the community, maintaining contact with Williams through the latter’s contraband phone. According to an agreed basis of plea, he was involved in the supply of cannabis into the prison on only a single occasion.[76]Kirk pleaded not guilty at the PTPH, but changed his plea to guilty on 26th May 2023, having previously offered to plead guilty on 21st April 2023. The judge said that she would give credit of 20% as a result.[77]In addition the judge had to sentence Kirk for offences of dangerous driving, driving while disqualified, driving without insurance and driving while over the specified limit for drugs. These offences were committed on 27th January 2021, at a time when Kirk was on bail, and had been transferred to Sheffield from Leeds Crown Court. They involved a police chase at speeds up to 90 mph in a 30 mph zone, with repeated driving through red lights, ignoring road closure and roundabout rules and a collision with at least two other vehicles. For these offences he had only pleaded guilty a few days before the scheduled date for trial. The judge said that she would give him credit of 12%.[78]A pre-sentence report indicated that, since the offences had occurred, Kirk had made some positive changes to his life. He had settled down with a partner with whom he had two young children and had become drug free. He had been working as a window fitter, with a realistic hope that this would lead to more regular work.[79]The judge said that for the conspiracy offences, Kirk had played a significant role, which in his case meant a starting point of 12 months’ imprisonment and a range between 26 weeks and 3 years. She noted that his previous convictions constituted an aggravating factor, although these did not include previous convictions for the supply of drugs, as did the fact that this was a supply of drugs into a prison. It was agreed that the Leeds offences fell within category 1A of the guideline for dangerous driving, with a starting point of 18 months’ imprisonment and a range up to 2 years. Numerous factors of high culpability placed the offences at the top end of that range and there were also a number of aggravating factors.[80]The judge said that if she had been sentencing after a trial closer to the commission of the offences, the shortest appropriate sentence would have been 42 months’ imprisonment. She continued:
‘Giving you credit for your guilty pleas and the delay which there has been, which has not been of your making, and taking everything into account that I have heard in mitigation, I impose a sentence that is substantially lower than it would otherwise have been, namely a sentence of 28 months’ imprisonment.’
[81]The judge explained that this represented 10 months in total for the conspiracy offences and 18 months in total for the Leeds driving offences, these two sentences being consecutive. However, she did not explain further how these were calculated, which complicates analysis of her sentence bearing in mind the different percentages for credit for plea which she allowed for the conspiracy and the driving offences. The judge also made a disqualification order with which we are not concerned.[82]There was no real delay in dealing with the Leeds offences, so there was no justification for reducing the sentence for those offences to take account of delay and it is not apparent that the judge did so. It seems likely that the delay which she took into account was delay in dealing with the conspiracy offences. Further, the judge did not say what sentence she would have imposed if dealing with the conspiracy offences alone.

Submissions

[83]The Solicitor General does not challenge the notional overall sentence of 42 months or the credit for plea which the judge allowed. She submits that the reduction to 28 months, a reduction of more than one third, was unduly lenient.[84]Mr Michael Walsh on behalf of Kirk submitted that the notional sentence of 42 months was too high when the agreed basis of plea was taken into account and that sentences of the order of 12 and 18 months would have been appropriate before giving credit for plea and taking account of totality. While he did not contend that the sentence imposed was manifestly excessive, he submitted that on no view could it be regarded as unduly lenient.

Decision

[85]As the judge did not explain how she had calculated the reduction from 42 months to 28 months, it is not possible to say how much of this reduction represented credit for plea either for the conspiracy or the driving offences, how much was attributable to the offender’s mitigation, and how much was attributable to the delay in bringing the conspiracy offences to their conclusion. It is apparent, however, that this offender did have significant personal mitigation, which would have called for a reduction in the sentence imposed. During the period of delay he had made real progress, abstaining from drugs, settling down with a family and obtaining work.[86]In the circumstances we are not persuaded that the sentence was unduly lenient and we refuse leave to refer.

Ayesha Martin

[87]Ayesha Martin is now 30, and was 23 at the time of these offences. She had no previous convictions.[88]Martin was McGinley’s partner. She was in almost daily contact with him by contraband mobile phone and supplied spice paper into the prison. She also delivered contraband items for Sked to take in, and dealt with financial aspects of the conspiracy.[89]Martin pleaded guilty to all counts against her at the PTPH, and was therefore entitled to 25% credit.[90]The judge said that Martin had played a significant role, resulting in a starting point for her of 4 years’ imprisonment, which was aggravated by the supply of drugs into prison. She referred to a number of factors reflecting personal mitigation, namely the lack of previous convictions, remorse, an otherwise positive character, a demonstration of steps having been taken to address her offending behaviour, her relative youth at the time of the offence and her difficult background. The judge said that following a trial closer to the time of commission of the offences, the shortest possible sentence would have been 6 years’ imprisonment. She continued:
‘Giving you credit for your guilty pleas and the substantial delay that there has been, which has not been of your doing, the sentence that I impose in your case, again, is substantially lower than it would otherwise have been and the sentence is one of 42 months’ or 3 ½ years’ imprisonment.’
[91]As we understand the judge’s sentencing remarks, this sentence did not take account of this offender’s mitigation. Although the position is not entirely clear when the sentencing remarks concerning Martin are considered in isolation, this understanding reflects the judge’s general approach when dealing with other offenders and it is likely that she was consistent in her approach when sentencing Martin. Thus the reduction from the notional sentence of six years to 3 ½ years, a reduction of 2 ½ years, must be understood as reflecting credit for plea, personal mitigation and delay.

Submissions

[92]The Solicitor General does not challenge the judge’s notional sentence of 6 years, or the credit of 25% which reduces the sentence to 54 months. She submits, however, that the further reduction to 3 ½ years or 42 months was unduly lenient. In oral argument, however, Ms Hole accepted that some reduction from 54 months would be appropriate to take account of mitigation.[93]On behalf of Martin, Mr James Baird submitted that this was not an excessive reduction in view of the many features of personal mitigation relating to this offender and that the overall sentence was just and proportionate. He referred also to a letter from Martin’s offender manager which spoke of her progress in positive terms.

Decision

[94]In our judgment the judge was entitled to make a reduction to take account of this offender’s mitigation and to take account of the long period of delay in dealing with her case. During that time, as with some of the other offenders, this offender had made significant steps towards rehabilitation which the inevitable custodial sentence may well have set back. Overall, we are not persuaded that the sentence on this offender was unduly lenient and we refuse leave to refer.

Jack McGlen

[95]The Solicitor General does not challenge the sentence of 4 years’ imprisonment imposed on Jack McGlen, but the Registrar has referred to us his application for leave to appeal against that sentence.[96]McGlen is now 33, and was 25 at the time of these offences. He had 17 convictions for 39 offences ranging between 2007 and 2024, which included an offence of possession with intent to supply cocaine for which he had been detained in a young offenders institution.[97]He was an inmate in the prison sharing a spur with Williams, among others involved in the conspiracy. He was in a relationship with another conspirator, Alicia Harrison, and worked with her and others to move money for the operation and to keep records of transactions. He was involved in arranging the purchase, sale and movement of drugs into and within the prison, and messages showed him pitching for custom for the sale of drugs in bulk. Video footage showed that he was heavily involved in the conspiracy within the prison. He was seen using drugs, and injecting another inmate with steroids while others were involved in other drug taking.[98]After his release from prison, he was made the subject of a community order for driving while disqualified, which he subsequently breached. The judge noted that although his offending had reduced, it had not ceased entirely. In his favour, however, he had been able to set up what appeared to be a successful roofing business, but had ceased involvement with it following a relapse into alcohol use.[99]He pleaded not guilty initially, but changed his plea to guilty in relation to one count on 21st April 2023 and in relation to the other counts on 10th August 2023, about a month before the trial had been due to start. The judge said that this would entitle him to credit limited to 15%.[100]It was agreed that McGlen had played a leading role, meaning a starting point of 4 years’ imprisonment for the lead offence. This was aggravated by his previous convictions and the fact that drugs were being supplied into prison. He had been involved over a period of time.[101]The judge said that if she had been sentencing at a time closer to the commission of the offence, the shortest possible sentence taking account of these aggravating factors would have been 6 years’ imprisonment. She continued:
‘Giving you credit for your guilty pleas and the delay that there has been, which has not been of your making, and taking into account all that I have heard in mitigation, again, I impose a sentence that is substantially lower than it would otherwise have been, namely one of 4 years’ imprisonment.’
[102]It is apparent, therefore, that the reduction for his guilty plea must have been of the order of 11 months and that the reduction attributable to mitigation and delay must have been about 13 months.

Submissions

[103]The principal submission of Ms Gillian Batts (now KC) for McGlen focused on the increase from the starting point of 4 years to the notional sentence of 6 years at which the judge would have arrived if she had been sentencing closer to the time of commission of the offences. Ms Batts accepted that some upward adjustment was appropriate to take account of the factors to which the judge referred, but submitted that an increase of 2 years was excessive. She accepted also that if this point was rejected, other points made in her written Advice would be likely to fall away. That was realistic.

Decision

[104]In our judgment some increase from the starting point of 4 years which the judge identified, to which no objection is made, was inevitable. The judge, who had not only presided over the trial of those defendants who maintained their pleas of not guilty, but had also heard detailed submissions on sentence over a period of 4 days, was well placed to calibrate the different roles played by the various offenders and to make the appropriate adjustments to the applicable starting points to take account of the aggravating features of each individual case. In the case of this offender, whether or not it can be regarded as severe, it is not reasonably arguable that the increase of two years was manifestly excessive. Nor is there any disparity with the sentences imposed on other offenders which requires a reduction in the sentence on this offender.[105]Accordingly leave to appeal is refused.

Conclusions

[106]In summary, therefore, for the reasons which we have explained:(1) The applications for leave to refer the sentences of Victoria Sked, Adam Kirk and Ayesha Martin as unduly lenient are refused.(2) The overall sentence on Simmie Mc Ginley is increased from 18 months to 30 months.(3) The overall sentence on Robert Williams is increased from 22 months to 40 months.(4) The overall sentence on Darren Morgan is increased from 4 years 10 months to 6 years.(5) The application by Jack McGlen for leave to appeal against sentence is refused.[107]We are grateful to all counsel for their assistance.

Cited in 2 later judgments