Elliot Omur Morris [2019] EWCA Crim 1367
Mr Morris had been convicted after trial at Cardiff Crown Court on 13 March 2018 of possession of a controlled drug of Class A (MDMA/ecstasy) with intent to supply (count 5) and possession of cocaine (count 8). He had also pleaded guilty to conspiracy to supply cannabis (count 1). The sentences imposed were 27 months on count 1, eight and a half years on count 5 and one month on count 8, all concurrent, for a total of eight and a half years’ imprisonment. The applicant, who was 29 years old and of effective good character, sought to extend time by 287 days to apply for leave to appeal. The single judge had refused that application. The renewed application before the full court focused on the sentence for count 5.
The cannabis conspiracy (count 1) involved Mr Morris and his parents growing cannabis in significant amounts at premises near Redditch and selling it to wholesalers operating in South Wales. Mr Morris had a leading role in that operation. When arrested at those premises, police found not only cannabis plants and paraphernalia but also powder and tablets roughly equivalent to 360 ecstasy tablets with a street value of between £2,500 and £3,500, giving rise to count 5. Police also discovered photographs on the applicant’s mother’s phone showing significant quantities of ecstasy, one of which showed Mr Morris’s hand, identified by fingerprint analysis. He had a cryptocurrency account containing the equivalent of £19,000 at the time of his arrest. The simple possession of cocaine (count 8) was also found.
The sentencing judge applied the Sentencing Council guideline for possession with intent to supply Class A drugs and concluded that the quantity of ecstasy put the offence into category 3. He found that Mr Morris had a leading role. The starting point specified in the guideline for a category 3, leading role offence was eight and a half years’ imprisonment. The judge made all sentences concurrent to reflect totality, so that the sentence on count 5 represented the totality of the offending rather than simply the offending on that count alone.
The grounds of appeal challenged the finding of a leading role. Mr Barry, appearing for the applicant, argued that the guideline features relied upon by the judge — directing or organising, buying and selling on a commercial scale, and dealing in the expectation of substantial financial gain — did not apply. He submitted that the first feature ordinarily required other participants subordinate to a principal, something more than merely buying drugs and selling them. In written submissions he had also argued that dealing in expectation of substantial financial gain must be read in the context of multi-million pound drug enterprises, though he accepted in oral argument that £19,000 could in normal terms be seen as substantial.
The court rejected those submissions. Sir John Saunders, giving the judgment, emphasised that the judge had heard the trial and was able to make his own assessment of the applicant’s level of involvement, placing him in a much better position than the Court of Appeal. It would be rare for the appellate court to interfere with findings of fact made by a judge who had heard the evidence. First, while the charge was limited to possession of 360 tablets, the evidence connecting Mr Morris with quantities of ecstasy went beyond that. The photographs and other material provided a basis for the judge to conclude that his involvement was more extensive. Secondly, the court did not accept that a defendant could not be sentenced on the basis of directing or organising, buying and selling on a commercial scale, unless he was part of a group. While that might be true of directing, it did not apply to organising. Organising could consist of a single person buying or selling on a commercial scale without other people necessarily being involved. The court acknowledged that a street dealer in ecstasy would normally be regarded as having a significant rather than a leading role, but the judge had clearly taken the view that Mr Morris’s participation went beyond that of a street dealer. Further, expectation of substantial financial gain could not only apply to very large amounts of money. It had to be related to the amount of dealing, which in this case fell within category 3 and involved about 300 tablets.
The court held that it was unable to say the judge had erred in assessing Mr Morris as having a leading role. The judge had taken the guideline starting point of eight and a half years, which was the starting point for the ecstasy offence alone, and had made an appropriate deduction to reflect totality by making all sentences concurrent, in accordance with the Sentencing Council guideline on totality. In short, the court considered that an appeal against sentence had no prospect of success on the merits, granted an extension of time of five days to renew the application but refused leave to extend time by the full 287 days, and the renewed application was refused.
The applicant was sentenced to 8 years and 6 months for conspiracy to supply cannabis, possessing MDMA with intent to supply and possession of cocaine, being convicted after trial of the latter two offences. He sought to renew his application for leave to appeal against sentence on the possession with intent to supply which attracted the 8 year and 6 months sentence.
The applicant was arrested as a result of the investigation into the supply of cannabis and at his premises the police found powder and tablets roughly equivalent to 360 Ecstasy tablets with a street value between £2,500 and £3,500, there was other evidence implicating him in the supply of ecstasy. The sentencing judge concluded it was a category 3 offence, the applicant took issue with the conclusion that he had a leading role. His argument was that inclusion as a leading actor would ordinarily require other participants in the enterprise subordinate to the principle.
Held: the arguments were not accepted, the judge was able to make his own assessment of the level of the applicant’s involvement having heard the trial, as the assessment was made on the basis of the evidence heard it would be rare for the Court to interfere. The Court did not accept that a defendant cannot be sentenced on the basis of directing or organising on a commercial basis unless he is part of a group. “While that may be true of directing, it does not apply, in our judgment, to organising. Organising can consist of a single person buying or selling on a commercial scale and that does not mean that other people necessarily need to be involved”. The judge clearly took the view that the applicant’s participation went beyond that of simply being a street dealer. The renewed application was refused.