Harry Goodman [2019] EWCA Crim 1575

R v Harry Goodman [2019] EWCA Crim 1575 concerned an appeal by Mr Goodman against a sentence of 32 months’ imprisonment imposed in the Crown Court at Newcastle-upon-Tyne for being concerned in the supply of a controlled drug of class A, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The Court of Appeal (Lord Justice Singh, Mr Justice Fraser and Mr Justice Martin Spencer) allowed the appeal and reduced the sentence to 28 months’ imprisonment.

Mr Goodman had pleaded guilty at the first opportunity on 11 July 2018 to being concerned in the supply of class A drugs. He was sentenced on 15 March 2019 by His Honour Judge Spragg, the delay being attributable to proceedings involving co-defendants. The appellant was born on 5 April 1998 and at the material time was a student and junior manager for a club promotion company in Newcastle.

In the second half of 2017 undercover officers were investigating the supply of class A drugs in Newcastle city centre. The trade was associated with the night-time economy and club promotion companies that targeted the young student population. On 18 September 2017 two undercover officers, Kim and Sarah, spoke to Mr Goodman outside Florita’s nightclub where he was working and asked if he knew anyone from whom they could purchase drugs. He provided them with a phone number listed in his contacts as “coke” and asked them to take a screenshot of another number listed as “coke 2”. He told them to ring the coke number and they would be met at the bus stop around the corner.

That same night the undercover officer Sarah rang the number and ordered two bags of cocaine for £50 each. The drugs were delivered 15 minutes later in a black Vauxhall Corsa by a co-defendant, Sean Moulding, who gave his name as John. He told Sarah to get into the car because he was conscious of CCTV in the area and drove about 100 yards whilst explaining he was available to supply drugs up to 2 am on weekdays and 4 am on weekends. He supplied two bags of cocaine containing 353 and 392 milligrams respectively. Further exchanges between the undercover officers and Sean Moulding led to further supplies on 24 and 26 September.

On 2 October the officers again went to Florita’s where Mr Goodman was working. There was a conversation about the phone numbers of cocaine dealers previously supplied by him. Mr Goodman stated that the first number was the more reliable one and the second was for a different dealer. He told the officers that he was getting sorted from a mate who offered cheaper rates but gave no further details at that stage. The undercover officer Sarah then contacted Sean Moulding who supplied her with £50 worth of cocaine again using the black Vauxhall Corsa.

On 11 October 2017 another co-defendant, Daniel Young, supplied the officers with two plastic bags of cocaine in exchange for £100 from a blue Nissan Qashqai. He told them he was a mate of Sean Moulding and that he might be working on Saturday. On 17 October Sean Moulding supplied the officers with £50 worth of cocaine from a white Fiesta. On 25 October the officers tried the “coke 2” number but the call was diverted to voicemail. Officer Sarah received a text message asking who it was. She explained she got the number from Harry whereupon “coke 2” replied asking her to get Harry to confirm that he gave her the number. On 30 October the officers went back to Florita’s and spoke to Mr Goodman asking him to contact “coke 2” but he declined saying that “coke 2” often did not answer and suggested that Sarah take down another number stored in his phone as “DD Kev”. The officers were then later supplied with two bags of cocaine by Kevin Ashong who told them that he was available any time. There were further supplies of cocaine to the officers through Kevin Ashong through November and December 2017.

In addition Sean Moulding sent out advertising messages so that on 22 September he texted “Charlie, MDMA and pingers let me know if anyone needs” to 21 different telephone numbers. This instigated over 400 drugs-related messages exchanged between the Mouldings, Young and others on 30 September and 1 October 2017.

Mr Goodman was arrested on 18 December 2017. In addition search warrants were executed at the homes of Sean and Paul Moulding. Paul Moulding was found in possession of eight packages of MDMA, two mobile phones and £1,300 in cash. Sean Moulding had a bag containing 339 milligrams of cocaine, a mobile phone and £310 in cash. A co-defendant, Kamar Hussain, was arrested at the same time as Sean Moulding and a plastic pot containing five packages of skunk cannabis was found in his bedroom. A search warrant executed at a third address frequented by the Mouldings yielded 17 ecstasy tablets, skunk cannabis, a quantity of MDMA, cocaine and other drug-dealing paraphernalia.

Mr Goodman was interviewed after his arrest and immediately admitted passing the drug dealer numbers to the undercover officers. He did not ask for legal representation when interviewed by the police and he submitted his phone for analysis.

At the sentencing hearing the prosecution submitted that Mr Goodman was playing a leading role, asserting that he was directing, organising, buying and selling on a commercial scale. Counsel for the prosecution said he had substantial links to and influence on others in the chain and he used his business as a cover. He provided and facilitated contact between the undercover officers and the co-accused street dealers in the autumn of 2017. Counsel for Mr Goodman submitted that he was himself a purchaser of drugs but also supplied the undercover officers with the numbers of those from whom he purchased. It was not accepted that the club was simply being used by him as a cover for the supply of drugs. It was submitted that it was obvious from the undercover recordings and the statements of the undercover officers that Mr Goodman played no part in how much was ordered, what the price was, where the location was and in any future contact. He was portrayed as a naive young man who in the drugs culture prevalent in Newcastle at the time did not appear to think that he would even be doing anything wrong. He asserted in interview that he was not a dealer. It was submitted that his role was a lesser one or alternatively straddled the border between a lesser role and a significant role for the purposes of the definitive guideline on sentencing in drugs cases. It was submitted he was certainly not in a leading role as had been submitted by the prosecution.

In sentencing Mr Goodman the learned judge accepted the submissions on behalf of the appellant in part but not wholly. He said he did not accept that the Crown had shown enough to suggest that Mr Goodman was in a leading role as he was not directing or buying and selling on a commercial scale and there was no evidence that he had substantial links to others in the chain or for example that he was making substantial financial gain. He had however clearly played a significant role in this street dealing, providing numbers for those who wished to purchase class A drugs and facilitating contact. There was no doubt that that was an operational role putting him squarely in the significant role category. He must have had some awareness of the scale of the operation and was motivated by other advantage, if not financially, in his role as a promoter for the club. The learned judge thus placed Mr Goodman within Category 3 of the definitive guideline with a starting point of four and a half years’ custody and a range from three and a half to seven years’ custody.

In sentencing Mr Goodman the learned judge said that in his view there was little reason to distinguish him from the dealers as without him they would not have had the customers. He said that weighing up all the aggravating and mitigating features, the sentence after a trial would have been four years. This was reduced to 32 months as Mr Goodman was entitled to full credit having indicated a guilty plea at the earliest stage.

So far as the co-accused Sean Moulding was concerned, the learned judge also reached a sentence of four years’ custody had there been a trial and after taking into account the aggravating and mitigating features in his case. He was entitled to only 25 per cent credit, thereby reducing the sentence in his case to three years’ imprisonment. The learned judge adopted the same approach in relation to Paul Moulding, but as Paul Moulding faced a cannabis charge which merited a consecutive sentence, the sentence for count 1 was reduced in his case to reflect the principle of totality. His overall sentence was three years and four months’ imprisonment. So far as Daniel Young was concerned, he pleaded guilty to conspiracy to supply class A drugs, namely cocaine, with Sean and Paul Moulding. His basis of plea was that he accepted supplying the undercover officers on one occasion only on 11 October 2017 and although he accepted sending messages to Paul Moulding on 30 September and 1 October he had not in fact supplied any drugs but had simply sent the messages in the hope of impressing Paul Moulding. He was at home at the time and accepted supplying friends who were at home with him on 30 September. On the basis of that plea the learned judge considered that the sentence after trial for him would have been 33 months’ imprisonment, which was reduced to 22 months after credit for plea. That sentence being less than two years was suspended by reference to the imposition guideline.

The appeal was advanced by Miss Byrnes on the ground that the learned judge was wrong in effect to treat Mr Goodman on a par with Sean and Paul Moulding. Thus in contradistinction to Sean and Paul Moulding the learned judge accepted that Mr Goodman had not gained financially from his actions whilst it was clear that Sean and Paul Moulding were involved in an enterprise of supplying and selling class A drugs, as well as cannabis, on a commercial basis. It was also submitted that the learned judge had failed to apply the sentencing guideline in relation to the reduction in sentence for a guilty plea. That guideline states that factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse should not be taken into account in determining the level of reduction but rather should be considered separately and prior to any guilty plea reduction, as potential mitigating factors. It was submitted that Mr Goodman’s good character was one such factor but in addition, and distinguishing him from the co-accused, he should have had additional mitigation taken into account in relation to his co-operation with the police. Thus it was said that in December 2017 Mr Goodman travelled from the family home in Hertfordshire to attend as a voluntary attendant for interview in Newcastle. In the course of that interview he made admissions and co-operated with the investigation, answering all the questions put to him and voluntarily surrendering his phone so that it could be interrogated by the police. In contrast neither Paul nor Sean Moulding answered any questions in interview.

In granting leave to appeal the single judge stated that it was arguable that in sentencing the judge erred in regarding Mr Goodman as, in effect, a co-conspirator with his co-defendants. He was not charged with conspiracy. His offence was in supplying two undercover officers, at their request, with telephone numbers of dealers from whom they could buy cocaine. The undercover officers used those numbers to buy cocaine on a number of occasions, the drugs being sold and delivered to them by his co-defendants. Mr Goodman had no part in the actual sale or delivery of any drugs. It was arguable that in those circumstances the judge should have placed his offending at a lower point in the guideline. It was also unclear what allowance he made for mitigation (youth, previous good character, remorse, assistance to police) prior to applying the full one-third discount for plea.

Mr Justice Martin Spencer, giving the judgment of the court, agreed with the single judge and with the submissions that had been made that the learned sentencing judge erred in reaching the same sentence for Mr Goodman as for Sean and Paul Moulding before applying the appropriate discounts for plea. In the court’s judgment, insufficient regard was had not only to the actual role of Mr Goodman as submitted to the learned judge on behalf of the appellant and as accepted by him, but also to the mitigating factors. Nevertheless the court considered that the learned judge was right to place Mr Goodman in the significant role category and therefore within the sentencing range that he did.

In the court’s judgment the appropriate sentence before reduction, taking into account the starting point which the learned judge reached for Sean and Paul Moulding, should have been at the very bottom of the category range, namely three and a half years rather than four years. Reducing that by one-third to give credit for the guilty plea would have reduced the sentence to one of 28 months’ imprisonment. To that extent therefore the court set aside the sentence that was imposed of 32 months. In short, the Court of Appeal held that the sentencing judge had erred in treating Mr Goodman on a par with his co-defendants despite his lesser role and co-operation with police, and the sentence was reduced to 28 months’ imprisonment.