Kingston [2019] EWCA Crim 811

R v Mark Buckley Kingston [2019] EWCA Crim 811 concerned an appeal against sentence by a man convicted of possession of cocaine with intent to supply, in which the Court of Appeal (Lady Justice Nicola Davies, Mr Justice Spencer and Mr Justice Morris) allowed the appeal and reduced the sentence from twelve years’ imprisonment to nine years.

Mr Kingston pleaded guilty before the West and Central Hertfordshire Magistrates’ Court and was committed for sentence pursuant to section 3 of the Powers of Criminal Courts (Sentencing) Act 2000. On 13 August 2018 His Honour Judge Arran, sitting as a Deputy Circuit Judge in the Crown Court at St Albans, sentenced him to twelve years’ imprisonment for possession of a controlled drug Class A with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971.

On 11 May 2018 police officers stopped a Ford Galaxy motor vehicle driven by the appellant on the M25 following information received. A search revealed a large number of grey bags. When arrested the appellant made no reply. At the police station, when an officer confirmed to the custody sergeant that she believed the packages contained Class A drugs, the appellant asked what Class A was. When told it was cocaine or heroin, he replied that it was hash. The bags contained 35 blocks of cocaine: 28 blocks at 93 per cent purity, one at 95 per cent, two at 96 per cent and three at 98 per cent. The total wholesale value was £1,085,000 with a street value of £2.8 million. In interview the appellant made no comment.

A Newton hearing was held because the Crown did not accept the appellant’s basis of plea, in which he contended that he believed the drugs were cannabis rather than cocaine. The appellant gave evidence on oath and the Deputy Judge found that he could not be satisfied that the appellant must have known the packages contained cocaine. At the date of sentence the appellant was aged 48 and had been a minicab driver for 26 years. He was living in difficult circumstances following a recent separation from his wife. Written testimonials spoke positively of his character and of the personal and financial difficulties in which he had found himself immediately before the commission of the offence.

The sentencing judge noted that the appellant’s previous convictions were of some age and thus irrelevant. The Crown’s case, not disputed by the appellant, was that his role in carrying the drugs was a significant one within the Sentencing Council Guidelines. The judge found that the high level of purity indicated that the drugs were of relatively recent import and that the person with whom the appellant had been dealing was high up in the hierarchy of the organisation using the appellant as a driver. The Deputy Judge initially appeared to take a starting point of fifteen years, which would have been after trial and with full knowledge that the drugs were cocaine, reducing it to twelve years to reflect his factual finding and the early guilty plea. When questioned by counsel as to his starting point the judge said it was in fact eighteen years because he regarded fifteen years as “a little generous”.

The grounds of appeal were that the judge took too high a starting point of eighteen years and that the sentence made insufficient allowance for the appellant’s mitigation. Mr David Burgess, appearing for the appellant, accepted the concession made below that the appellant’s role fell into the significant category within the Sentencing Council Guidelines, accepting that he held an operational management function within a chain and was motivated by financial or other advantage. However, Mr Burgess contended that any sentence should be at the lower end of the category because this was a borderline case containing some aspects of a lesser role.

The Court of Appeal noted that Category 1 of the Guidelines identifies the greatest quantity of cocaine as being 5 kilograms. The starting point for an offender holding a significant role in a Category 1 case is ten years within a range of nine to twelve years. However, the Guidelines note that where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than Category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender. The court held that the quantity of Class A drugs seized, together with its wholesale and street value, reflected the gravity of the offence. In its judgment no issue could have been taken with a starting point of at least 20 years following a trial had the appellant been found to have possessed knowledge that he was carrying cocaine. However, the judge having made his findings as to the defendant’s knowledge, there had to be a reduction in sentence to reflect that finding of fact.

The Court of Appeal considered that a starting point of eighteen years was appropriate had the appellant known that the drugs were cocaine following a trial, and that starting point could have been higher. The court reduced that starting point by four and a half years to reflect the judge’s finding as to the defendant’s knowledge, bringing the sentence to thirteen and a half years. A further reduction of one third was applied to reflect the guilty plea, bringing the final sentence to nine years’ imprisonment. The court quashed the original sentence of twelve years’ imprisonment and substituted a sentence of nine years’ imprisonment.

In short, the appeal was allowed and the sentence reduced from twelve years to nine years to properly reflect the finding that the appellant may not have known he was carrying cocaine rather than cannabis.