Richards, R v

Factual and Procedural Background

The Appellant was sentenced on 5 August 2021 at the Crown Court at Southwark to concurrent terms of 12 years' imprisonment on two counts of being concerned in supplying Class A drugs, specifically cocaine and diamorphine, between April and October 2020, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Additionally, the Appellant received a concurrent six-month sentence for possessing criminal property related to proceeds from drug sales, under section 329(1)(a) of the Proceeds of Crime Act 2002. The overall sentence was initially 12 years.

Following a further hearing on 11 August 2021 under section 385 of the Sentencing Act 2020, the total sentence was adjusted to eleven years and three months' imprisonment.

At sentencing, the Appellant was 31 years old with six previous convictions for 17 offences, including prior drug trafficking offences in 2009 and 2011. He was a "third strike" offender under section 313 of the Sentencing Act 2020, subject to a minimum custodial sentence of seven years.

The primary evidence against the Appellant comprised EncroChat logs from a secure encrypted messaging service infiltrated by law enforcement. The Appellant used the handle "Butterwood" to purchase and supply significant quantities of cocaine and heroin. After the EncroChat service was shut down, he continued drug supply via conventional messaging services.

Searches of the Appellant's premises revealed substantial cash, luxury items including an expensive watch, and designer clothes. The quantity of drugs supplied was not less than 2.25 kilograms of cocaine and 5 kilograms of heroin, which formed the basis of sentencing.

Legal Issues Presented

1. Whether the sentence imposed on the Appellant appropriately reflected the aggravating and mitigating factors in accordance with the applicable Sentencing Council guidelines.
2. Whether the discount applied for the Appellant’s guilty plea was correctly calculated and whether the plea was entered at the earliest reasonable opportunity.
3. The appropriateness of the prosecution’s concession regarding the timing of the earliest opportunity for a guilty plea and the court’s role in determining this matter.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the original discount for the guilty plea included an element of mitigation, which should have been treated separately.
• The Appellant’s attorney suggested increasing the discount for the guilty plea to 30% to correct the conflation of mitigation and plea discount.

Court's Observations on Prosecution's Position

• The prosecution conceded that the earliest opportunity for a plea was at the next hearing after 11 March, which the court found problematic as it is the court’s responsibility, not the prosecution’s, to determine the earliest opportunity for a plea.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming the starting point of 14 years' imprisonment under the applicable Sentencing Council guideline for the quantity of drugs involved and the Appellant’s leading role in a commercial, wholesale operation. The judge had adjusted this starting point upwards by one year to 15 years to account for aggravating factors such as prior offending, the scale and duration of supply, proximity to the source of pure drugs, and sophisticated methods to avoid detection.

The court noted that the judge reduced the sentence by 20% for mitigation and the guilty plea but failed to clearly separate the reduction for mitigation from the reduction for the guilty plea, thus conflating two distinct stages of sentencing. This caused uncertainty as to the precise discount for the plea.

Upon review, the judge accepted a prosecution concession that the earliest opportunity for the plea was at the next hearing, resulting in a further discount to eleven years and three months. However, the court expressed concern that it is not the prosecution’s role to determine the earliest opportunity for a plea—this is a matter solely for the court.

The court applied the principle from R v Plaku and Others, highlighting that a defendant who delays a guilty plea to assess the strength of the prosecution case is not entitled to the full discount for an early plea. The Appellant had delayed his plea awaiting the outcome of other litigation, which was tactical rather than necessary for advice or evidence review.

Consequently, the court concluded that the original adjusted starting point of 15 years appropriately reflected aggravating and mitigating factors, and the 25% reduction for the guilty plea was generous under the circumstances. The Appellant had no valid complaint regarding the sentence length or the plea discount.

Holding and Implications

The renewed application for leave to appeal against sentence is REFUSED.

The court’s decision upholds the adjusted sentence of eleven years and three months' imprisonment. It confirms that the sentencing process correctly accounted for aggravating and mitigating factors and that the discount for the guilty plea was appropriate given the timing and circumstances of the plea. The ruling underscores the court’s exclusive authority to determine the earliest opportunity for a guilty plea, limiting the prosecutorial role in this regard. No new precedent was established beyond the application of existing guidelines and case law.