R v Anthony James Barrett [2025] EWCA Crim 559

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[2025] EWCA Crim 559

Venue Royal Courts of Justice

Strand

London

WC2A 2LL

Date Tuesday, 8 April 2025

Before

LORD JUSTICE JEREMY BAKER

MR JUSTICE GARNHAM

HIS HONOUR JUDGE TIMOTHY SPENCER KC

(Sitting as a Judge of the CACD)

Between

REXCrown

Between

ANTHONY JAMES BARRETT

__________

Computer Aided Transcript of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_________

MR L MUIR appeared for Applicant

_________

J U D G M E N T

[1]On 15 April 2021 in the Crown Court at Northampton, the applicant, Anthony Barrett, pleaded guilty to a charge of conspiracy to supply cocaine. On 14 February 2024 before Her Honour Judge Rebecca Crane in the same court the applicant was sentenced to a term of 63 months' imprisonment.

[2]The applicant now applies for an extension of 167 days in which to apply for leave to appeal against sentence, the matter having been referred to the full court by the single judge. In a letter dated 27 August 2024 the applicant's representative states that the application was supposedly lodged on 9 March 2024 but the email was "stuck" in an outbox. Counsel was in back to back rape trials and did not notice the email had not been sent. We indicate now that if we were to conclude that there was merit in the application, we would extend time. On the present facts, the applicant should not be prejudiced by the error on the part of his counsel.

[3]The facts can be summarised shortly. The case involved a multi-handed conspiracy to supply class A drugs in the Northamptonshire area. The evidence showed that the entire conspiracy was responsible for the supply of at least 10 kilograms, and possibly more than 15 kilograms, of cocaine. The applicant was a wholesale supplier of the drug to a co-defendant, Scott Stirling. Stirling was a well-known drug dealer in the Corby/Northampton area.

[4]As part of the conspiracy the applicant supplied a kilogram of cocaine to Stirling for onward supply. The applicant was in contact with Stirling through EncroChat phones. Stirling told the applicant that as long as the quality of the drugs was good he would pay up front for it. On the same day the applicant supplied Stirling with a kilogram of cocaine.

[5]The applicant had two previous convictions for three offences in the period September 1993 to September 2008. These included offences of possession of drugs and possession with intent to supply. His last offence, conspiracy to supply cocaine, led to a sentence of 17 years' imprisonment being imposed in 2008. The applicant was therefore on licence when committing the index offence.

[6]The Crown Court sentenced the applicant without a report. We agree with the judge that a pre-sentence report was not necessary before her, and it is not necessary before us now.

[7]The sentencing judge found that this was a significant role, Category 2, offence for which the starting point in the guidelines is eight years, with a range of six years six months to 10 years' imprisonment. She correctly concluded that the offence was aggravated by the applicant's previous convictions, the fact that the offence was committed on licence and the applicant's use of an EncroChat device in order to try to avoid detection. In addition, she pointed out, this was a conspiracy offence. Those factors, she concluded, lifted the sentence above the starting point to 10 years' imprisonment. She allowed 25 per cent credit for plea, resulting in a sentence of seven years nine months' imprisonment.

[8]The judge then further reduced the sentence by two years and six months, applying R v Saunderson

[2020] EWCA Crim 1556

, to reflect the remand time loss by the applicant as a result of delay in sentencing him, a delay for which he was not responsible, which meant that his period of recall under licence was extended.

[9]The only ground of appeal concerns that reduction and in particular the proper approach for calculating such a reduction. Mr Muir, for the applicant, argues that the judge should have granted a greater reduction to reflect the delay between the date of the applicant's guilty plea and the date of sentence. He says that, given the early release provisions, the reduction of two years and six months will result in a real time reduction of only one year and three months. In consequence, the applicant will serve a period in custody of at least one year and three months more than if there had not been the period of delay recognised by the judge.

[10]The court in Saunderson was concerned with an appeal against a sentence of nine months' imprisonment for offences of theft and possession of a bladed article. The defendant was recalled to prison for breach of licence conditions imposed for a previous offence. He was due to appear at the Crown Court for sentencing on 19 April 2020 but sentencing was postponed because of the lockdown imposed as a result of the Covid-19 pandemic. He was not in fact sentenced until 12 August 2020. By that time he had been in custody from April to August which was a delay of some four months, equivalent, the court observed, to an eight month sentence. The grounds of appeal included the argument that the judge failed to take account of the delay in sentencing caused by the pandemic which meant that the period of recall under licence was extended.

[11]Giving the judgment of the court, Dingemans LJ said this:

"The fact that the time spent in custody awaiting the sentence did not count towards his sentence because he had been recalled on licence was not something that could be relied on by the appellant. This is because he was the one who offended in the past, had been released on licence and had continued to offend breaching his licence conditions, so justifying his recall. However, the extra delay caused by the Covid-19 pandemic to the sentencing was not the responsibility of the appellant and indeed the appellant had done all that he could to avoid the delay by cooperating with the police on his arrest and by entering timely guilty pleas. In our judgment it would be wrong to penalise the appellant for the extra delay for which he was not responsible. A principled way of reflecting this extra period is to maintain the individual sentences for each separate offence, but to make the sentences for the two offences of theft concurrent with each other and with the offence for possession of a bladed article. This means that the overall sentence imposed on the appellant is now six months, rather than nine months. The appellant will still have to serve half of that period of six months, but as a matter of reality, and as the judge recognised in his sentencing remarks, when the appellant is released will be a matter for the Parole Board when considering release from the recall on licence."

[12]It is to be noted, first, that the court made clear that ordinarily time spent in custody as a result of recall to prison for breach of licence conditions would not count towards the sentence subsequently imposed. Second, where there is delay in sentencing for some reason entirely unrelated to the conduct of the defendant, that may be taken into account in sentencing. Third, there was no suggestion of a rule that the allowance to be made for such delay would inevitably be double the period of delay so as to accommodate the usual early release provisions.

[13]In our judgment, the last point needs to be emphasised. The sentence of the court includes both the period to be spent in custody and the subsequent period to be spent on licence. Delays in sentencing cannot justify a reduction in both elements of the sentence, as would be the position if the applicant's arguments were accepted. Instead, the correct approach is for the sentencing court to identify the period of delay in sentencing which flows from factors outside the defendant's control and to take that into account when fixing the final sentence. In our judgment, that is exactly what the judge did here. We see no error in her approach.

[14]Accordingly, we see no merit in this application and we decline to extend time for making this application. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE15. Tel No: 020 7404 1400

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