Shergold, R. v

Factual and Procedural Background

The Appellant, aged 46, was convicted on 27 September 2021 at the Crown Court at The City for one count of conspiracy to supply Class A drugs (cocaine) and two counts of possessing criminal property. On 9 December 2022, the trial judge sentenced the Appellant to 15 years' imprisonment for the conspiracy, with two shorter concurrent terms for the possession counts. Two co-conspirators pleaded guilty and received shorter sentences concurrently. The Appellant's initial application for permission to appeal the sentence was refused by a single judge but was renewed to the Full Court with a short extension of time granted due to difficulties accessing the prison where the Appellant was held.

The conspiracy involved a sophisticated county lines operation between 18 October 2018 and 15 January 2019, supported by covert surveillance, telephone, and forensic evidence. The Appellant was identified as a key player in the conspiracy, involved in various incidents including the collection and distribution of packages, exchanges of cash, and possession of cocaine and large sums of cash at multiple locations.

At sentencing, the judge, who presided over the trial, concluded the Appellant played a leading role. The offence was classified as category 1 due to the quantity of drugs involved. The judge noted aggravating factors including the Appellant's extensive criminal record and recent release from custody under supervision. Mitigating factors were considered but found to be outweighed by aggravating circumstances. The Appellant was sentenced to 15 years, a slight increase from the guideline starting point of 14 years, with no credit for a guilty plea.

Legal Issues Presented

1. Whether the trial judge was correct in finding that the Appellant played a leading role in the conspiracy.
2. Whether the trial judge failed to give adequate weight to the Appellant's personal mitigation.
3. Whether the sentence imposed was disproportionate compared to that of a co-conspirator, Cairns.

Arguments of the Parties

Appellant's Arguments

• The judge erred in categorising the Appellant as playing a leading role in the conspiracy.
• The judge failed to give sufficient weight to the Appellant's personal mitigating factors.
• The sentence was disproportionate when compared to the sentence imposed on Cairns.

Respondent's Arguments

• The amount of cocaine seized overall justified the category 1 classification and the leading role finding.
• The trial judge was in the best position to assess the evidence and the role of the Appellant, and there was no basis to overturn that assessment.
• The mitigating factors were properly considered but outweighed by significant aggravating factors, including the Appellant's criminal record and leading role.
• The disparity argument failed because Cairns had significantly lesser culpability, no previous convictions, and pleaded guilty, justifying the difference in sentences.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court affirmed the classification of the offence as category 1 based on the total quantity of cocaine involved in the conspiracy, not limited to what was found in the Appellant's possession. The court emphasised the deference owed to the trial judge's assessment of the evidence and the Appellant's role, noting the exceptional nature of any appellate interference absent extraordinary circumstances.

The court identified three key characteristics supporting the leading role finding: (a) substantial links and influence over others in the conspiracy chain; (b) expectation and receipt of substantial financial gain; and (c) use of a business as a cover for illegal activities. The Appellant exhibited all three characteristics, including controlling co-conspirators, profiting from the operation, and operating a cash-heavy business as a front.

Regarding mitigation, the court found the trial judge had properly considered mitigating factors such as delay and personal circumstances but reasonably concluded that aggravating factors, notably the Appellant's criminal history and leading role, slightly outweighed mitigation. The court accepted the judge's reasoning for imposing a sentence slightly above the guideline starting point but within the recommended range.

On the disparity issue, the court held that the Appellant failed to demonstrate comparable culpability or circumstances with Cairns. Cairns had a lesser role, no prior convictions, and pleaded guilty, justifying his lighter sentence. The court found no indication of error or injustice in the sentencing disparity.

Holding and Implications

The appeal against sentence is REFUSED.

The court upheld the trial judge's findings and sentence, confirming the Appellant's leading role and the appropriateness of the 15-year term. The decision reinforces the principle that appellate courts will rarely overturn a trial judge's sentencing assessment absent exceptional circumstances. No new legal precedent was established, and the ruling primarily affects the parties by affirming the sentence imposed on the Appellant.