Moka Busby [2019] EWCA Crim 1131

R v Moka Busby [2019] EWCA Crim 1131 concerned an appeal against a sentence of 15 months’ imprisonment imposed by the Crown Court at Oxford on 17 April 2019 for administering a poison or noxious substance with intent, contrary to section 24 of the Offences against the Person Act 1861, and one month’s imprisonment for possessing Clonazolam. The Court of Appeal reduced the sentence and suspended it.

Miss Busby had pleaded guilty on 1 March 2019 to both offences. The sentence of 15 months was imposed for the section 24 offence and one month consecutive for possession of Clonazolam, though the latter sentence had already been served.

In December 2017 Miss Busby had been made homeless after falling out with her mother and was living temporarily with her father, his partner, her younger half-brother and the victim Jonathan Deacon, the son of her father’s partner. On 13 December 2017 Miss Busby and Mr Deacon argued because Mr Deacon wanted to use the living room to watch television whilst Miss Busby wanted to sleep there. The following day, whilst Mr Deacon was out shopping, Miss Busby spiked his two-litre bottle of Coca Cola with Clonazolam, a synthetic benzodiazepine. When Mr Deacon returned and resumed drinking from the bottle he became very unsteady on his feet, felt lightheaded and clammy, fell over twice and felt drunk. An ambulance was called. The paramedics found him sleepy, lethargic and slurring his words. Miss Busby realised the seriousness of her actions and told her father’s partner what she had done, producing a blue bottle which was handed to the paramedics and enabled proper treatment. Mr Deacon suffered no permanent ill-effects, only a small scar from the cannula inserted at hospital. In a victim personal statement he generously expressed that he did not want Miss Busby to go to prison but wanted her to get the help she needed. He did not want a restraining order imposed.

The sentencing judge noted the unknown risk Miss Busby had taken in administering the drug to Mr Deacon, who was already taking Fluoxetine to her knowledge, with no way of knowing the potentiating effects. He observed that Mr Deacon could have sustained much more serious injury had he fallen outside. The judge considered that Miss Busby was prepared to gamble with Mr Deacon’s health and life. He stated that those who purchase illegal substances via the internet and use them unlawfully must expect imprisonment. He took a starting point of 20 months’ imprisonment and applied 25 per cent credit for the guilty plea, reaching 15 months. He rejected suspension, stating that the nature of the offence and level of premeditation made it inappropriate.

A pre-sentence report noted that Miss Busby accepted responsibility and expressed remorse, though she claimed to have no memory of putting the Clonazolam into the bottle. The report author considered that her offending was indicative of impulsive thinking linked to a diagnosis of emotionally unstable personality disorder, which increased the likelihood of failing to consider consequences of behaviour on others. The author assessed that Miss Busby would benefit from a rehabilitation activity requirement. A psychiatric report from Dr Alcock related her difficult upbringing and long-standing mental health problems. He reported that she was deeply sorry and felt terrible about her actions, and confirmed the diagnosis of emotionally unstable personality disorder. Miss Busby was of previous good character.

On appeal, Mr Thompson submitted that the learned judge’s starting point was excessive. He relied on R v Harries [2012] EWCA Crim 3071, where a defendant who spiked coffee with amphetamine in order to get colleagues dismissed for workplace bullying had a suspended sentence of six months upheld on an Attorney General’s reference. In Harries the court acknowledged that an offence of administering poison could be equated with a section 20 offence or serious actual bodily harm, leading to a starting point of 18 months. Mr Thompson argued that both Harries and the earlier case of R v Ronald Jones 12 Cr App R (S) 233 were significantly more serious. He submitted that harm in the present case was not remotely comparable with section 20 wounding and would amount to lesser harm on the assault occasioning actual bodily harm guideline. He referred to R v Callaghan [2001] EWCA Crim 198, where a six-month sentence for slipping a prescription drug into a friend’s wine was upheld as appropriate. He submitted that the judge placed excessive reliance on premeditation and risk of fatality when the drugs were not obtained for the purpose of committing the offence and the risk of serious injury was slight. He argued that the starting point should have been on a par with Callaghan or alternatively categorised as level two on the assault occasioning actual bodily harm guideline, with a starting point of 26 weeks.

Mr Thompson further submitted that insufficient credit for plea was given and inadequate reduction for significant mitigation. He contended that the judge should have given greater consideration to suspending the sentence and failed to address the guideline on the imposition of custodial and community sentences. He submitted that factors in the table at page eight of the imposition guideline all favoured suspension: Miss Busby did not present a danger to the public; she had no convictions before or since; appropriate punishment could be achieved without immediate custody; there was no history of non-compliance with court orders; there was a real prospect of rehabilitation as demonstrated by the pre-sentence report; there was strong personal mitigation; and immediate custody would have a detrimental effect upon others, particularly her father. He reminded the court that sentencing courts must pay attention to the imposition guidelines.

The Court of Appeal agreed largely with Mr Thompson’s submissions. Mr Justice Martin Spencer, giving the judgment of the court, held that the learned judge adopted too high a starting point and that 20 months’ imprisonment before credit for plea was manifestly excessive. The court considered that the judge failed to give Miss Busby sufficient credit for recognising almost immediately the seriousness of what she had done, informing her step-mother and providing the blue bottle to the paramedics so that Mr Deacon received the right treatment and the optimum chance of recovery. An appropriate sentence before reduction for plea would have been eight months’ imprisonment, reduced to six months after credit for plea.

The court further held that the learned judge should have given more serious consideration to suspending the sentence. Had the facts set out in the imposition guideline been considered in turn, they would almost certainly have led the judge seriously to consider suspending the sentence. The Court of Appeal therefore substituted a sentence of six months’ imprisonment suspended for 12 months for the sentence of 15 months’ immediate imprisonment. It similarly suspended the one-month sentence for possession of Clonazolam, noting that it had already been served. In the unlikely event that the suspended sentence were activated, there would be nothing to serve for possessing Clonazolam and only a short residual period of the six-month sentence. Following the recommendation in the pre-sentence report, the court attached a rehabilitation activity requirement of 20 days to the suspended sentence.

In short, the Court of Appeal allowed the appeal, reduced the sentence to six months, suspended it for 12 months and attached a 20-day rehabilitation activity requirement.

Callaghan [2001] EWCA Crim 198
Attorney General’s Reference No 071 of 2012, R v Harries [2012] EWCA Crim 3071