Daniel Lewis [2019] EWCA Crim 253

R v Daniel William Angus Lewis [2019] EWCA Crim 253 is a decision of the Court of Appeal (Lord Justice Holroyde, Mr Justice Sweeney and Her Honour Judge Wendy Joseph QC) on an unduly lenient sentence reference made by the Solicitor General under section 36 of the Criminal Justice Act 1988, in which the court allowed the reference, quashing a suspended sentence and substituting an immediate custodial term of 3 years’ imprisonment.

Mr Lewis pleaded guilty on 31 October 2018 in the Crown Court at Lewes to seven offences of possession with intent to supply controlled drugs (contrary to section 5(3) of the Misuse of Drugs Act 1971), namely 41 doses of LSD and 110 grams of cocaine (Class A), 26 grams of methedrone and 230 grams of dibutylone (Class B), and three quantities of anabolic steroids (Class C), together with one offence of possession of 22 grams of ketamine (section 5(1)). On 2 November 2018 he was sentenced to concurrent terms of 2 years’ imprisonment for each Class A offence and shorter concurrent terms for the other counts, all suspended for 2 years with requirements of 300 hours’ unpaid work, a four-month curfew and a rehabilitation activity requirement for up to 15 days.

The offences came to light on 11 July 2016 when police were called to Mr Lewis’ flat in Brighton following the death of a young woman, Aimee Spencer, who had fallen from a window while intoxicated by cocaine and ketamine. Mr Lewis was found naked, agitated and under the influence of drugs. Searches of the flat and a garage he rented recovered the drugs that were the subject of the charges. The LSD, anabolic steroids, cocaine of 79 per cent purity and other drugs were found along with paraphernalia indicative of dealing, including price lists from dark web suppliers, deal bags, a pill press, Post Office receipts and paperwork showing bulk purchases of padded envelopes. Further ketamine for personal use was found when police returned in September. The total value of controlled drugs was estimated at between £8,000 and £15,000, with a further £5,600 worth of prescription medicines. Messages recovered from mobile phones belonging to Mr Lewis’ partner and the deceased showed Mr Lewis discussing drug supplies, profit margins and “doing drops” over several months in mid-2016. Bank records revealed repeat deposits from six regular clients exceeding £20,000. The prosecution case was that for at least a year before July 2016 Mr Lewis ran a commercial business supplying drugs of classes A, B and C both by local delivery and through the postal service. Mr Lewis accepted supplying to friends and acquaintances in the local drugs scene and using the post for steroids and Class C drugs, but there was no evidence of further supplies after 11 July 2016.

The sentencing judge heard that Mr Lewis, then aged 30, had no convictions save for a formal warning at age 14. A psychiatric report dated June 2018 recorded a recent diagnosis of mixed neurodevelopmental disorder with features of ADHD and Asperger’s. Dr Zaman reported that Mr Lewis had begun drug use at 18 “to help him socially” and that use increased in his mid-20s when his father was diagnosed with cancer, with dependence syndrome developing. Mr Lewis had seen a drugs counsellor from 2017, had stopped taking drugs since 2016 and had been abstinent for at least 3 months (though with two brief relapses). Dr Zaman noted that individuals with ADHD misuse stimulants more frequently than the general population but could not comment on any link between Mr Lewis’ mental health and his drug supply offending. The pre-sentence report assessed him as low risk of reoffending, noted his distance from former associates in Brighton, his recent marriage and volunteer work with a charity, and concluded he was suitable for a community penalty if the court so decided. Numerous character references attested to the great changes Mr Lewis had made in his life since arrest, describing him as a trusted and valued colleague in his charity work.

The prosecution and defence agreed the case fell within category 3 “significant role” under the Sentencing Council Definitive Guideline for drug offences, with a starting point of four-and-a-half years’ imprisonment for the Class A offences. Prosecuting counsel noted aggravating features including the scope and scale of dealing, the sophistication of dark web involvement and bank transfers, and suggested the sentence might fall higher than the standard starting point. Defence counsel acknowledged the custody threshold was passed by a significant margin but submitted that the facts (a one-man operation supplying a relatively small group in a small area) and the personal mitigation (lengthy delay not of Mr Lewis’ making and his very successful rehabilitation) justified suspending custody. The judge accepted Mr Lewis bore no responsibility for Ms Spencer’s death but emphasised that he had peddled misery by dealing in large quantities of many different types of drugs conservatively valued at £10,000. She noted the lengthy delay of over two years since arrest, the significant changes in Mr Lewis’ life including continued drugs counselling, his honesty about two slip-ups but overall drug-free status, his diagnosis of Asperger’s and dissociative disorder which underpinned his addiction (though not his dealing) and his charity work, concluding he was now a very different person. The judge acknowledged that on the face of it the guidelines merited a very substantial custodial sentence but emphasised that guidelines were not tramlines. She stated that if she sent Mr Lewis to prison immediately that would be pure punishment, whereas her responsibility was not only to punish but to encourage rehabilitation and protect the public from future offending. She therefore took what she described as an extremely lenient course but which she considered justified by all the hard work Mr Lewis had undertaken, imposing the suspended sentence with its requirements.

On behalf of the Solicitor General, Ms Ledward submitted that the judge had correctly identified the category 3 significant role starting point of four-and-a-half years but had failed to impose an immediate custodial sentence of considerable length. She submitted there was insufficient reason to depart from the guideline in the interests of justice so as to reach a sentence capable of suspension or to permit suspension, and that the judge had given excessive weight to personal mitigation that was not sufficiently exceptional. She emphasised this was not a case of a drug addict supplying solely to fund his own habit; Mr Lewis had private means and messages indicated clear financial motivation. Both the psychiatrist and the judge had identified Mr Lewis’ mental health as explaining his drug use but not his supply to others. She submitted that public confidence would be shaken by a suspended sentence. Mr Kamlish QC for Mr Lewis identified four key factors: the delay in proceedings (in part due to prosecution disclosure failings); Mr Lewis’ successful rehabilitation since arrest; impressive character references and testimonials; and remarkable progress in complying with the suspended sentence requirements (233.5 of 300 hours of unpaid work completed and some rehabilitation activity days completed). Mr Lewis had recently been offered a permanent job by the charity and planned to set up a dog care centre with his wife. Mr Kamlish submitted that Mr Lewis had done as much as anyone could to justify the judge’s faith and show his ability to be a useful member of society. He relied on a passage in the guideline stating that a community order with drug rehabilitation requirement could be a proper alternative to a short or moderate length custodial sentence where the defendant is drug-dependent with sufficient prospect of success. He submitted that the appropriate sentence had the judge not suspended it would have been of moderate length, and relied on the five statutory purposes of sentencing in section 142 of the Criminal Justice Act 2003. He cited earlier authorities including R v Mattheson [2010] EWCA Crim 238 and submitted the judge was justified in taking a lenient course for good reason. Alternatively, he submitted there were compelling reasons not to increase the sentence now, given that immediate imprisonment would deprive Mr Lewis of his entire support network in circumstances exposing him to temptation and would adversely affect his mental health, supported by the recent decision in R v Forsythe-Wilding [2018] EWCA Crim 1180.

The Court of Appeal held that the case fell within category 3 significant role with a number of aggravating features, and that the appropriate sentence after trial but before mitigation would be well above the guideline starting point of four-and-a-half years for a single Class A offence. Giving full weight to the personal mitigation (effective good character, strong rehabilitation efforts, mental health conditions providing some explanation for personal drug use though not supply to others) and limited credit for the very late guilty pleas, the court considered that as at the date of sentencing the total sentence after application of the guideline would not have been less than about four-and-a-half years, and that would only be appropriate after giving full weight to mitigation. The judge’s sentence therefore represented a departure from the guideline which section 125 of the Coroners and Justice Act 2009 required her to follow unless satisfied it would be contrary to the interests of justice to do so. The court understood why the judge wished to focus on rehabilitation but took the view that she had attached undue weight to that aspect. First, the court was troubled by the circumstances in which the judge raised the issue of sentence when seeing counsel in chambers about disclosure matters, when no Goodyear application had been made. Secondly, the court was not as impressed as the judge by the feature of delay; Mr Lewis was entitled to contest the charges, put the prosecution to proof, prepare his case and apply for disclosure, but given he knew all along he had been supplying drugs he could not realistically expect much weight to be given to mitigation based on delay. Thirdly, the guidelines reflect the seriousness of drug supply in light of the harm it causes and human misery resulting, and the statutory aims of punishment, reduction of crime by deterrence and protection of the public should have carried very considerable weight. Without seeking to define the precise scope of a short or moderate custodial sentence, the court had no doubt this was not a proper case to treat a suspended sentence as an alternative to a sentence of the length indicated by applying the guideline. The requirements attached to the suspended sentence had punitive effect but fell far short of commensurate punishment. The judge identified reasons why rehabilitation was desirable and in the public interest but did not identify compelling reasons why rehabilitation of this offender so far outweighed the public interest in appropriate punishment of serious crime as to make it contrary to the interests of justice to apply the guideline rather than depart from it to the extent she did.

The court was satisfied the sentencing was unduly lenient and considered whether it was necessary to increase the sentence in light of Mr Lewis’ substantial performance of the suspended sentence requirements and further good progress since sentencing. The court concluded it was necessary to increase the sentence, taking the view that it could reflect his performance of the requirements and continued good work by making a significant further reduction from the total sentence that would have been appropriate as at the date of offending. The court was of the clear view that these offences demanded a total sentence exceeding that which could be suspended and that the very least total sentence appropriate in all the circumstances as at the date of the appeal was 3 years’ imprisonment. The court therefore granted leave, quashed the sentences below and substituted concurrent terms of 3 years’ imprisonment for each of counts 1 and 5, 2 years for each of counts 6 and 7, 18 months for each of counts 2, 3 and 4, and 6 months for count 8, making a total sentence of 3 years’ imprisonment. The court directed that Mr Lewis surrender to Brighton Custody Centre by 4.00 pm that day.

In short, the Court of Appeal found that a suspended sentence for large-scale commercial drug supply spanning at least a year with multiple classes of drugs and financial motivation was unduly lenient notwithstanding strong personal mitigation and successful rehabilitation, and substituted an immediate custodial term of 3 years reduced from the guideline range to reflect compliance and progress since the original sentence.

Attorney-General v Forsythe-Wilding [2018] EWCA Crim 1180
Attorney-General’s Reference (101 of 2009) [2010] EWCA Crim 238