David Dean Pedley [2019] EWCA Crim 1308
Summary
**R v David Dean Pedley [2019] EWCA Crim 1308** concerned renewed applications for leave to appeal against both conviction and sentence before the Court of Appeal, Lady Justice Rafferty DBE, Mr Justice Nicol and Mr Justice Freedman.
The applicant had pleaded guilty to three counts of conspiracy to supply cocaine (“Crackle 2” indictment) on 9 December 2016 and was later convicted on 16 May 2018 after a retrial of conspiracy to transfer a prohibited firearm (count 2 of the “Crackle 1” indictment), having been acquitted of conspiracy to rob (count 1). On 30 July 2018 Her Honour Judge Montgomery QC sentenced him to concurrent terms of ten years and nine months’ imprisonment on each drug conspiracy and a consecutive term of six years and three months’ imprisonment for the firearm offence, making a total of seventeen years. Co-defendants Ezekiel Osbourne received six years and three months consecutive to four years for a separate heroin conspiracy, Edward Stewart had been convicted at the first trial, and Ryan Clarke pleaded guilty to simple possession of a firearm.
The drug conspiracies involved the applicant’s purchase and distribution of high-purity cocaine totalling 2.5 kilograms between April and May 2016. On count 1 of Crackle 2, a one-kilogram block of 95 per cent purity cocaine was found in the flat of Brent Caney one month after the applicant’s phone was cell-sited near that address and the applicant passed a bag containing £28,500 to a man named Dugan. The applicant’s basis of plea accepted that he had paid Dugan the money for the cocaine subsequently recovered. Count 5 concerned the applicant’s purchase of high-purity cocaine from an Albanian for about £51,000 on 13 May 2016, and count 7 related to his recruitment of others to harbour cocaine. The prosecution maintained that the applicant was an organiser and hands-on leader.
The firearm conspiracy arose from events on 5 April 2016. Osbourne and Clarke were seen together in Birmingham that evening. Clarke then travelled to Edward Stewart’s home in Northampton. There were calls between Clarke and Osbourne and between Osbourne and Stewart. When Clarke returned to Birmingham, police stopped him and found a Smith & Wesson .44 calibre revolver in a box behind the front passenger seat. Clarke’s phone had received a text message reading “B14 4DW”, the post code for an area including Pendeen Road, Yardley Wood, which was one street from where Clarke was stopped and had been entered into his Satnav. A member of the applicant’s family lived on Pendeen Road, though the police did not allege that person was criminally involved. During Clarke’s journey to Northampton there was a series of voice calls between the applicant and Osbourne. Osbourne sent Clarke the Pendeen Road post code shortly after receiving a call from the applicant and immediately called the applicant back. Osbourne was observed near the area where police stopped Clarke. The prosecution alleged that Osbourne and Stewart orchestrated Clarke’s journey and that the applicant was involved.
The applicant’s case was that he had nothing to do with any firearm transfer. He and Osbourne were old friends, which explained frequent contact. The applicant was illiterate, which explained the preference for voice calls over text messages. He said he did not know Clarke or Stewart and had not been involved in passing the post code to Clarke. At the retrial Judge Montgomery rejected a submission of no case to answer at close of the prosecution case. Before that stage the judge had permitted the Crown to adduce evidence of a previous conviction in September 2005 for robbery, possession of a firearm and ammunition, and aggravated vehicle taking, for which the applicant and Osbourne had jointly robbed a Securicor van driver and the applicant was sentenced to imprisonment for public protection, serving about ten years. The judge identified similar features including targeting a cash-in-transit van, use of a similar firearm, and use of a car stolen in a burglary, plus the fact that both defendants had acted together then as alleged now. She held under section 101(3) of the Criminal Justice Act 2003 that admission would not have such an adverse impact on fairness that the evidence ought to be excluded and noted the convictions were not scandalous and unlikely to distract the jury.
Mr Howat, acting pro bono, submitted on appeal that the judge erred in refusing to withdraw the case at close of prosecution evidence and in admitting the previous conviction to bolster a weak case. He argued that the jury could only draw the inference the prosecution relied upon if they could safely reject all alternative explanations consistent with innocence, which they could not given the friendship between the applicant and Osbourne and frequent non-criminal contact. As to the conviction evidence, he submitted it was a single instance incapable of establishing propensity, that evidence of prior possession of a loaded firearm was so prejudicial it should have been excluded under section 101(3) or section 78 of the Police and Criminal Evidence Act 1984, and that the Crown was improperly using it to prop up a weak case.
The court rejected these submissions. The judge had rightly concluded that the combination of circumstances could make the jury sure of guilt. Friendship with Osbourne did not preclude communication for criminal purposes, as the earlier conviction demonstrated. It was not merely that communication occurred but that the particular timings were significant. The post code was further evidence of the applicant’s involvement. The previous conviction was capable of showing relevant propensity for all the reasons the judge gave, and its admission was not so unfairly prejudicial as to warrant exclusion. Accordingly the court refused leave to appeal against conviction and considered it superfluous to address the application for a five-day extension of time.
Turning to sentence, the applicant was born on 15 April 1981 and was therefore 37 at sentence. His recall to prison following arrest meant that none of the time in custody pending sentence counted. Judge Montgomery found that the applicant played a leading role in the drug conspiracies, directing transmission of cocaine on a commercial scale with substantial links to others in the chain and close to the Albanian source links, expecting substantial financial gain. The 2.5 kilograms involved exceeded the one-kilogram indicative amount for category 2, for which a leading role has a starting point of eleven years and a range of nine to fourteen years. The applicant routinely handled drugs whereas the guideline contemplated a single transaction. Very high purity was aggravating. Though guilty pleas came very late, she allowed ten per cent credit. After trial the sentence would have been twelve years, reduced to ten years and nine months with credit. The firearm was brought into Birmingham for criminal purposes but there was no evidence of its use to inflict harm. The judge took account of personal mitigation and delay awaiting sentence. Ordinarily she would have imposed seven years but reduced this to six years and three months because of time spent awaiting sentence.
Mr Howat contended the judge erred in assigning a leading role rather than a significant role for the drug offences and gave insufficient allowance for mitigation. He informed the court the applicant was present at Birmingham Prison during a riot in which he did not participate and in which he saved the life of a vulnerable prisoner. He submitted that too little credit was given for the guilty pleas, observing that the guideline in force at the time allowed ten per cent credit during trial and that the new guideline was not yet operative. He further argued that the applicant’s guilty pleas had a domino effect, prompting five other defendants to plead guilty one working day later with substantial saving in court time, rendering the total sentence manifestly excessive.
The court was unimpressed by the submission that the judge erred in categorising the offence as leading role, noting that the judge had excellent opportunity to make that assessment. However Mr Howat’s other submissions had greater force. The fact that the applicant not only refrained from participating in a prison riot but assisted another prisoner was greatly to his credit. It was also substantially to his credit that his late plea had a domino effect leading to others pleading guilty. The judge could also have made a greater reduction to account for delay not attributable to the applicant. Accordingly the court granted leave to appeal against sentence and allowed the appeal to the extent of reducing the total sentence by one year, substituting concurrent sentences of nine years and nine months’ imprisonment on each drug count, making a total sentence of sixteen years instead of seventeen years.
In short, the appeal against conviction was refused but the appeal against sentence was allowed, reducing the total term from seventeen to sixteen years’ imprisonment in recognition of personal mitigation including conduct in custody and the knock-on effect of the guilty pleas.
The applicant had pleaded guilty to three counts of conspiracy to supply cocaine (“Crackle 2” indictment) on 9 December 2016 and was later convicted on 16 May 2018 after a retrial of conspiracy to transfer a prohibited firearm (count 2 of the “Crackle 1” indictment), having been acquitted of conspiracy to rob (count 1). On 30 July 2018 Her Honour Judge Montgomery QC sentenced him to concurrent terms of ten years and nine months’ imprisonment on each drug conspiracy and a consecutive term of six years and three months’ imprisonment for the firearm offence, making a total of seventeen years. Co-defendants Ezekiel Osbourne received six years and three months consecutive to four years for a separate heroin conspiracy, Edward Stewart had been convicted at the first trial, and Ryan Clarke pleaded guilty to simple possession of a firearm.
The drug conspiracies involved the applicant’s purchase and distribution of high-purity cocaine totalling 2.5 kilograms between April and May 2016. On count 1 of Crackle 2, a one-kilogram block of 95 per cent purity cocaine was found in the flat of Brent Caney one month after the applicant’s phone was cell-sited near that address and the applicant passed a bag containing £28,500 to a man named Dugan. The applicant’s basis of plea accepted that he had paid Dugan the money for the cocaine subsequently recovered. Count 5 concerned the applicant’s purchase of high-purity cocaine from an Albanian for about £51,000 on 13 May 2016, and count 7 related to his recruitment of others to harbour cocaine. The prosecution maintained that the applicant was an organiser and hands-on leader.
The firearm conspiracy arose from events on 5 April 2016. Osbourne and Clarke were seen together in Birmingham that evening. Clarke then travelled to Edward Stewart’s home in Northampton. There were calls between Clarke and Osbourne and between Osbourne and Stewart. When Clarke returned to Birmingham, police stopped him and found a Smith & Wesson .44 calibre revolver in a box behind the front passenger seat. Clarke’s phone had received a text message reading “B14 4DW”, the post code for an area including Pendeen Road, Yardley Wood, which was one street from where Clarke was stopped and had been entered into his Satnav. A member of the applicant’s family lived on Pendeen Road, though the police did not allege that person was criminally involved. During Clarke’s journey to Northampton there was a series of voice calls between the applicant and Osbourne. Osbourne sent Clarke the Pendeen Road post code shortly after receiving a call from the applicant and immediately called the applicant back. Osbourne was observed near the area where police stopped Clarke. The prosecution alleged that Osbourne and Stewart orchestrated Clarke’s journey and that the applicant was involved.
The applicant’s case was that he had nothing to do with any firearm transfer. He and Osbourne were old friends, which explained frequent contact. The applicant was illiterate, which explained the preference for voice calls over text messages. He said he did not know Clarke or Stewart and had not been involved in passing the post code to Clarke. At the retrial Judge Montgomery rejected a submission of no case to answer at close of the prosecution case. Before that stage the judge had permitted the Crown to adduce evidence of a previous conviction in September 2005 for robbery, possession of a firearm and ammunition, and aggravated vehicle taking, for which the applicant and Osbourne had jointly robbed a Securicor van driver and the applicant was sentenced to imprisonment for public protection, serving about ten years. The judge identified similar features including targeting a cash-in-transit van, use of a similar firearm, and use of a car stolen in a burglary, plus the fact that both defendants had acted together then as alleged now. She held under section 101(3) of the Criminal Justice Act 2003 that admission would not have such an adverse impact on fairness that the evidence ought to be excluded and noted the convictions were not scandalous and unlikely to distract the jury.
Mr Howat, acting pro bono, submitted on appeal that the judge erred in refusing to withdraw the case at close of prosecution evidence and in admitting the previous conviction to bolster a weak case. He argued that the jury could only draw the inference the prosecution relied upon if they could safely reject all alternative explanations consistent with innocence, which they could not given the friendship between the applicant and Osbourne and frequent non-criminal contact. As to the conviction evidence, he submitted it was a single instance incapable of establishing propensity, that evidence of prior possession of a loaded firearm was so prejudicial it should have been excluded under section 101(3) or section 78 of the Police and Criminal Evidence Act 1984, and that the Crown was improperly using it to prop up a weak case.
The court rejected these submissions. The judge had rightly concluded that the combination of circumstances could make the jury sure of guilt. Friendship with Osbourne did not preclude communication for criminal purposes, as the earlier conviction demonstrated. It was not merely that communication occurred but that the particular timings were significant. The post code was further evidence of the applicant’s involvement. The previous conviction was capable of showing relevant propensity for all the reasons the judge gave, and its admission was not so unfairly prejudicial as to warrant exclusion. Accordingly the court refused leave to appeal against conviction and considered it superfluous to address the application for a five-day extension of time.
Turning to sentence, the applicant was born on 15 April 1981 and was therefore 37 at sentence. His recall to prison following arrest meant that none of the time in custody pending sentence counted. Judge Montgomery found that the applicant played a leading role in the drug conspiracies, directing transmission of cocaine on a commercial scale with substantial links to others in the chain and close to the Albanian source links, expecting substantial financial gain. The 2.5 kilograms involved exceeded the one-kilogram indicative amount for category 2, for which a leading role has a starting point of eleven years and a range of nine to fourteen years. The applicant routinely handled drugs whereas the guideline contemplated a single transaction. Very high purity was aggravating. Though guilty pleas came very late, she allowed ten per cent credit. After trial the sentence would have been twelve years, reduced to ten years and nine months with credit. The firearm was brought into Birmingham for criminal purposes but there was no evidence of its use to inflict harm. The judge took account of personal mitigation and delay awaiting sentence. Ordinarily she would have imposed seven years but reduced this to six years and three months because of time spent awaiting sentence.
Mr Howat contended the judge erred in assigning a leading role rather than a significant role for the drug offences and gave insufficient allowance for mitigation. He informed the court the applicant was present at Birmingham Prison during a riot in which he did not participate and in which he saved the life of a vulnerable prisoner. He submitted that too little credit was given for the guilty pleas, observing that the guideline in force at the time allowed ten per cent credit during trial and that the new guideline was not yet operative. He further argued that the applicant’s guilty pleas had a domino effect, prompting five other defendants to plead guilty one working day later with substantial saving in court time, rendering the total sentence manifestly excessive.
The court was unimpressed by the submission that the judge erred in categorising the offence as leading role, noting that the judge had excellent opportunity to make that assessment. However Mr Howat’s other submissions had greater force. The fact that the applicant not only refrained from participating in a prison riot but assisted another prisoner was greatly to his credit. It was also substantially to his credit that his late plea had a domino effect leading to others pleading guilty. The judge could also have made a greater reduction to account for delay not attributable to the applicant. Accordingly the court granted leave to appeal against sentence and allowed the appeal to the extent of reducing the total sentence by one year, substituting concurrent sentences of nine years and nine months’ imprisonment on each drug count, making a total sentence of sixteen years instead of seventeen years.
In short, the appeal against conviction was refused but the appeal against sentence was allowed, reducing the total term from seventeen to sixteen years’ imprisonment in recognition of personal mitigation including conduct in custody and the knock-on effect of the guilty pleas.
The applicant changed his plea after the opening of the prosecution case and pleaded guilty to three counts of conspiracy to supply cocaine. On a second indictment he was convicted at a retrial of conspiracy to transfer a prohibited firearm. He was sentenced to concurrent terms of 10 years and 9 months’ imprisonment for each of the drug conspiracies and a consecutive term of 6 years and 3 months for the firearm charge.
The second indictment included a count of conspiracy to rob on which the applicant was acquitted. A previous conviction was admitted at the trial, this was for the robbery of a cash in transit van with the use of a firearm which was very similar to the current case and had taken place with the same co-accused. The defence argued that the case should have been withdrawn from the jury and that the previous conviction was admitted in support of a weak case. It was a single conviction and so not capable of establishing propensity and was so prejudicial it should have been excluded.
Held: the submissions did not even arguably demonstrate that the conviction was unsafe. The judge rightly concluded that the jury could find that the combination of circumstances made them sure of the applicant’s guilt. The previous conviction was capable of showing a relevant propensity and was of significance for the reasons the judge gave, it was not so unfairly prejudicial that it ought to be excluded. Leave to appeal conviction was refused.
As to sentence the Court noted that his guilty plea to the drugs conspiracies had a ‘domino effect’ leading to 5 co-accused pleading guilty, saving substantial court time. The Court also took account of the fact that while awaiting sentence a riot took place in prison, he did not get involved and saved the life of a vulnerable prisoner. The judge also should have made a greater reduction than she did to take account of the delay in sentence that was not attributable to him. The overall sentence was reduced by one year.