Hastings & Daroux [2019] EWCA Crim 1698

**Regina v Hastings & Daroux** [2019] EWCA Crim 1698 concerned Attorney General’s references against sentence on the ground that sentences imposed for conspiracy to supply cocaine and heroin were unduly lenient; the Court of Appeal (Lord Justice Davis, Mr Justice Edis and Mr Justice Andrew Baker) refused both applications.

Mr Jermaine Daroux and Ms Tara Hastings pleaded guilty on 13 June 2019 in the Crown Court at Lewes to conspiracy to supply cocaine and conspiracy to supply heroin, the offending having taken place between 2 and 14 January 2019. Ms Hastings had earlier pleaded guilty on 12 February 2019 to possessing cannabis. On 26 July 2019 Mr Daroux was sentenced to fifty-seven months’ imprisonment on each count, concurrent; Ms Hastings was sentenced to twenty-four months’ imprisonment, suspended for two years with two hundred hours’ unpaid work and fifteen days’ rehabilitation activity, with a short concurrent term on the cannabis count.

In December 2018 the two offenders moved together to a flat in Grand Parade, Brighton, from which they supplied Class A drugs directly to users. Customers called Mr Daroux to place orders. A co-accused, Coleman, acted as a runner to complete exchanges, and was later sentenced to twelve months’ immediate custody. Ms Hastings assisted in packaging and wrapping drugs and kept track of money. On 2 January 2019 police observed Coleman exchanging small items with known drug users and followed him covertly to the flat. On 14 January 2019 Coleman was again observed engaging in apparent drug supply activity and was arrested in possession of seventeen wraps of crack cocaine, ten wraps of heroin, a knife, two mobile phones, cash and keys to the flat. Police used the keys to gain entry, finding both offenders inside. Searches recovered 1.2 grammes of crack cocaine and 1.4 grammes of heroin ready for further distribution, together with scales, a lock knife, a flick knife, a knuckle-duster, clingfilm, a notebook recording drug trades, several mobile phones and over £2,800 in cash. One wrap seized from Coleman bore Ms Hastings’s thumbprint.

Analysis of mobile phones showed over one thousand contacts among the three conspirators over the two-week period. Cell-site analysis showed Mr Daroux had made several trips between London and Brighton and had given instructions to Coleman. Messages between the two offenders demonstrated that Ms Hastings was involved in preparing drugs and continuing the conspiracy when Mr Daroux was away. The messages indicated that hundreds of wraps were sold per week, leading to a conservative estimate of approximately £5,000 worth of drugs sold over the conspiracy’s duration. When interviewed Mr Daroux provided a prepared statement denying involvement and then answered no comment; Ms Hastings admitted she had moved to Brighton with Mr Daroux, whom she described as a friend of her boyfriend, said some cash was hers, denied knowledge of the rest and denied involvement in drug supply. Coleman made full admissions at an early stage.

Mr Daroux had previous convictions, none resulting in custody and none involving drug supply, though one was for possession of cannabis. Ms Hastings had no relevant convictions, only motor vehicle offences and cautions for shoplifting. A pre-sentence report assessed Ms Hastings as showing low risk of reoffending but stated that risk increased if she continued to associate with drug dealers. The probation officer recommended a suspended sentence if the court was minded not to impose immediate custody, noting her difficult background and circumstances. Both offenders pleaded guilty at a relatively late stage but the judge generously accorded them twenty per cent credit; no challenge was made to that aspect of the sentencing.

The judge applied the Sentencing Council drugs offences guideline. It was common ground that the case fell within category three harm, which includes selling directly to users (street dealing) where the starting point is not based on quantity. The judge found that Mr Daroux had a leading role, giving rise to a starting point of eight years and six months’ custody with a range of six years and six months to ten years. He found that Ms Hastings had a significant role, with a starting point of four years and six months and a range of three years and six months to seven years. The judge noted that a lesser role would attract a starting point of three years with a range of two to four and a half years.

For Mr Daroux the judge moved down in the range from the starting point of eight and a half years to seven years to reflect the short duration of the conspiracy and the fact that the quantities of drugs were not as great as in other cases. He further reduced the term to six years to reflect personal mitigation, then gave credit for the plea, resulting in the final sentence of fifty-seven months. Personal mitigation included positive character references, financial pressure as the reason for recruitment, good progress in custody, no convictions for comparable offending and no convictions for some time, his role as carer for his dependent partner and children, and his lack of prior custody.

For Ms Hastings the judge took the starting point under the guideline but attached particular emphasis to mitigation. He observed that he suspected she was a victim of the drugs trade, drawn in by the need to feed her addiction and through attachment to Mr Daroux. He accepted she had received little financial benefit and gave considerable weight to her difficult personal background, strong references from a previous employer and others, the fact that she had never been in significant trouble before and his view that there was no real prospect of reoffending. He reduced the starting point from four and a half years to three years, gave credit for the plea and further reduced the figure to twenty-four months in light of personal mitigation. He then suspended the sentence, repeating that he saw little prospect of her offending again and taking the view that society would benefit from the assistance of the Probation Service. He indicated that her mitigation had caused him to change his mind from imposing immediate custody.

Before the Court of Appeal Mr Philip Stott, for the Solicitor General, submitted that the judge had unwarrantedly departed from the guideline and imposed unduly lenient sentences. He acknowledged considerable personal mitigation in each case but pressed that this was deliberate supply of drugs directly to users by offenders from an outside metropolitan area, namely a county lines operation. The conspiracy involved considerable supplies to street users over approximately two weeks and concerned both cocaine and heroin. It was charged as a conspiracy, connoting knowing involvement of several others, and weapons including a flick knife and a lock knife were found at the premises. He submitted that aggravating features at the very least matched, and as he contended outweighed, the mitigating features and that the judge was not justified in going below the starting point and indeed below the bottom of the applicable range.

Ms Rebecca Upton, for Mr Daroux, submitted that although the judge’s categorisation of his role as leading was not strongly challenged, there were elements suggesting a significant role and the case could be regarded as towards the cusp for guideline purposes. She noted that this was scarcely selling on a commercial scale and less than one hundred and fifty grammes were involved, though she accepted that category three states the starting point for street dealing is not based on quantity. She pressed the available mitigation and stressed Mr Daroux’s family responsibilities. She accepted the sentence was lenient but disputed that it was unduly lenient.

Ms Michaela Bonsu, for Ms Hastings, frankly accepted this was on any view a lenient sentence. She stressed the care the judge had evidently taken and said he was entitled to find very significant mitigation and to go significantly below the starting point. She submitted that although the categorisation as a significant role was not improper, there were also elements of a lesser role and the case might properly be regarded as on the cusp between significant and lesser role. She submitted that there was room for leniency in such cases and that the judge was seeking to impose a constructive sentence so that Ms Hastings would not reappear before the courts and could lead a useful life, pointing to the active support of an employer, parents and family. She indicated Ms Hastings accepted she had been given a last chance and proposed to take it. She submitted the mitigating features greatly outweighed the aggravating features and the judge was entitled to take the merciful course he took.

The court held that there could be no doubt both sentences were very lenient but it was not persuaded they were unduly lenient such as to require interference. The judge had given reasons explaining why he did what he did and, to the extent he departed from the guideline, explained why. The court accepted that judges are required to follow guidelines and should not depart from them unless the interests of justice require good reason for doing so. Here the judge had given his reasons. Mr Daroux had not previously been in custody and on any view had received a significant custodial sentence. In the case of Ms Hastings the departure from the guideline was very marked indeed and in many ways very close to the line; the judge might have been expected to impose a somewhat longer sentence and indeed immediate custody given the facts of the offending aside from personal mitigation. Taking all the circumstances into account, however, the judge had a basis for doing what he did. The court emphasised that the case stood as no kind of precedent.

In short, the Court of Appeal refused both Attorney General’s references, holding that although the sentences were very lenient and in Ms Hastings’s case very close to the line, the judge had a proper basis for departing from the guideline in the circumstances of this exceptional case.