Davids [2019] EWCA Crim 553; [2019] 2 Cr App R (S) 33
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R v Variel Augustus Davids [2019] EWCA Crim 553; [2019] 2 Cr App R (S) 33 is a judgment of the Court of Appeal, Criminal Division (Lord Justice Simon, Mr Justice Turner and Her Honour Judge Tayton QC sitting as a judge of the Court of Appeal) refusing an application for leave to appeal against sentence.
On 13 September 2018 in the Crown Court at Woolwich Mr Davids pleaded guilty to four counts of supplying Class A controlled drugs. Counts 1, 5 and 6 related to crack cocaine and count 2 to heroin. His Honour Judge Williams sentenced him to four years and six months’ imprisonment concurrent on each count. The single judge refused leave to appeal and the matter came before the full court as a renewed application.
The factual background to the offences was not set out in detail. The applicant was sentenced as a street dealer in drugs with a previous conviction for the same type of offending.
His Honour Judge Williams took a starting point of six years’ custody and applied a reduction of 25 per cent for the guilty plea, reaching the total of four and a half years’ imprisonment.
The single ground of appeal advanced by Miss Emma Lewis was that the applicant had indicated his guilty plea at the earliest opportunity in the magistrates’ court when the Better Case Management Form was completed, and therefore should have received the full one-third reduction. The form contained a section headed “Pleas (either way) or indicated pleas (indictable only) or alternatives offered” which was completed in manuscript with the words “No indication”. However, in a section below headed “To be completed by the court” and “in so far as known, real issues in the case”, the form was filled in, also in manuscript, “Likely to be guilty pleas on a basis”. Miss Lewis submitted that this constituted an indication of plea sufficient to attract maximum credit. She further submitted that the entry left open an issue to be decided at a Newton hearing.
The Court of Appeal rejected the argument. Lord Justice Simon held that the entry was not an indication of plea such as to entitle the applicant to full credit. It was keeping options open, both as to whether a guilty plea would be offered and the basis on which it would be offered. The entry invited the question how likely the plea was to be offered, whether very likely, quite likely or on balance more likely than not. The form contained a designated place where a plea could be indicated, and the entry under that heading had correctly stated “No indication”. The statement was accurate; no indication of plea had been given. The court also rejected the argument concerning a Newton hearing, holding that such an issue could equally arise where a clear indication of guilty plea had been given.
Miss Lewis raised a further point concerning disparity with the co-accused, the applicant’s brother Ulando Davids. Ulando’s Better Case Management Form had been filled in with the words “Likely to be guilty pleas on basis” in the section designated for indicated pleas. He had been given 33 per cent credit. The applicant submitted that this gave rise to objectionable disparity.
The court noted that the sentencing judge had been addressed on this point after passing sentence. His Honour Judge Williams had treated the words “likely to be guilty pleas on basis” when entered in the section designated for indicated pleas as sufficient to give rise to maximum credit. The Court of Appeal expressed its views about that conclusion but held that the judge had been right to conclude that the point did not give rise to objectionable disparity. There was no sustainable argument based on disparity because credit had been given on an entirely different basis in relation to the two brothers.
In short, an entry on a Better Case Management Form stating that guilty pleas were likely to be entered on a basis was not an unequivocal indication of plea sufficient to attract full credit, and there was no objectionable disparity with a co-accused who received greater credit where that credit had been given on a different basis.