Joseph Achina [2019] EWCA Crim 999
Mr Achina had pleaded guilty on 27 October 2017 at Ipswich Crown Court to theft and to failing to surrender to bail. On 16 November 2018 he was sentenced to two years and six months’ imprisonment for theft with one month consecutive for the Bail Act offence. He was aged 56 at sentence. No complaint was made against the Bail Act sentence.
The appellant had been a qualified pharmacist employed for many years by Boots the Chemist and managed their in-house pharmacy at Stowmarket Health Centre in Suffolk. Between October 2016 and June 2017, over a nine-month period, he stole medication from his employer. The offending came to light when an assistant store operations manager identified a shortfall in diazepam. Investigation revealed around 140 packets of diazepam were missing, amounting to over 4,000 tablets worth approximately £3,333. When interviewed in company disciplinary proceedings, Mr Achina admitted ordering packets of diazepam which he said he had sent back to his family in Ghana. He also admitted taking other drugs including diamorphine and temazepam which had been returned or were unwanted and sent to Ghana. When arrested by police on 9 June 2017, a search of his address recovered further medication worth over £1,000, bringing the total value to approximately £4,400. Analysis of his iPhone and iPad showed he had been offering drugs for payment and sending bank details to others for payment for drugs. He answered no comment in police interview.
A basis of plea was eventually withdrawn before a Newton hearing could be completed. Mr Achina therefore stood to be sentenced on a full-facts basis, meaning the count reflected a course of conduct over many months involving frequently repeated thefts. The Crown submitted the case fell into Category 3 of the Sentencing Council Guideline for harm based on the value of approximately £4,000, arguing higher culpability. The judge concluded that the high degree of trust coupled with the risk of harm to the public given the nature of the drugs pushed the case up into Category 2A, where the starting point was two years with a range of one to three years and six months. The judge assessed that Mr Achina had seen a potential loophole in Boots’ auditing processes and had stolen drugs to order and for profit. Significant planning would have been required for his enterprise to succeed and continue without other staff becoming aware. The judge observed that Mr Achina appeared to have initially lied about the extent of the thefts and there had been numerous court hearings where he had prevaricated about the full extent of his guilt, leading to substantial delay of his own making. Any credit for the guilty plea had been drastically reduced as a result.
The judge noted Mr Achina’s age, that he had lost his employment and good name, had no previous convictions, and had used his time in custody to help others. Balancing aggravating and mitigating factors and allowing minimal credit for the guilty plea, the judge determined the correct sentence was two years and six months’ imprisonment.
Mr Achina argued the judge had adopted too high a starting point and had failed to give sufficient credit for his plea.
The court held the judge was entitled to determine this was a Category 2A offence. High culpability was demonstrated by the high degree of trust and responsibility involved in his role as a pharmacist. Category 2 harm was demonstrated by the medium value of the goods stolen coupled with the significant additional element of harm in the nature of the drugs stolen. The appropriate starting point was correctly identified as two years’ custody with a range between one and three and a half years. The offence was significantly aggravated both by the sustained period over which it took place and the fact the drugs were stolen to order and for profit. The plea came late and the need for a Newton hearing was only abandoned even later, so the credit to which the appellant was entitled was indeed minimal. The Single Judge had concluded the sentence of two and a half years was well within the category range and despite mitigation including lack of previous convictions there were no arguable grounds that the sentence was either wrong in principle or manifestly excessive. The court agreed with that assessment and refused the application.
In short, an application for leave to appeal a sentence of two and a half years for theft by a pharmacist of prescription drugs over nine months for profit was properly refused, the categorisation and limited credit for plea being entirely appropriate.
The applicant changed his plea to guilty to an offence of theft and was sentenced to 2 years and 6 months’ imprisonment. He was a pharmacist and manager of an in-house pharmacy at a health centre. He pleaded guilty to stealing medication over a 9 month period. An internal investigation found around 4,000 diazepam tablets missing with a value of £3,333.
The applicant admitted to the company that he had sent drugs back to his family in Ghana. When arrested further medication was found at his home and analysis of his phone and iPad found he had been offering drugs for payment. The total value of the theft was around £4,400. He was sentenced on a full facts basis of repeated thefts over a period of many months.
It was argued on appeal that the judge had taken a starting point that was too high and failed to give sufficient credit for plea.
Held: the judge was entitled to find this was a Category 2A offence, high culpability came with the high degree of trust and responsibility due to his role and category 2 harm came from the medium value of the drugs stolen together with the significant additional element of harm in the nature of the drugs stolen. The offence was significantly aggravated by the sustained period of offending and the fact the drugs were stolen to order and for profit. The appeal was dismissed.