Negus Nelson [2019] EWCA Crim 1453

Negus Nelson [2019] EWCA Crim 1453 was an appeal to the Court of Appeal (Lord Justice Males, Mr Justice Edis and His Honour Judge Marson QC) against a sentence of eight years’ imprisonment for two offences of possession of Class A drugs with intent to supply, which was dismissed.

On 1st April 2019 in the Crown Court at Sheffield, the appellant, then aged 30, pleaded guilty to possession of cocaine with intent to supply and possession of heroin with intent to supply, both contrary to section 4(1) of the Misuse of Drugs Act 1971. The offences were committed between 17th December 2015 and 12th January 2017. On 1st May 2019 His Honour Judge Slater sentenced him to concurrent terms of eight years’ imprisonment on each count.

The offending spanned approximately a year and involved multiple incidents. On 17th December 2015 police stopped a car driven by the appellant and recovered wraps of cocaine with a purity of 91 per cent and 94 per cent respectively, valued at approximately £250, along with £465 in cash and four mobile phones containing numerous drug-supply text messages. The appellant claimed the drugs were for personal use and was granted bail. On 2nd March 2016 police searched the address of the appellant’s partner, Deiryan Dyce, where both were present. The appellant was seen passing a mobile phone to Dyce, who tried to drop it into a bucket. Further wraps of heroin and cocaine were recovered. The appellant again claimed personal use and was bailed. On 18th August 2016 police recovered 194 grams of cocaine with 96 per cent purity and a street value of £14,000 from a vehicle linked to the appellant, together with a stun gun. The carrier bag containing the drugs bore the appellant’s fingerprint. He made no comment in interview and was again granted bail. On 22nd September 2016 police searched the appellant’s home and seized £5,492 in cash contaminated with cocaine, later dealt with by a Proceeds of Crime application. Police investigation also recovered telephones from other offenders containing text messages from the appellant offering to supply heroin and cocaine and indicative of him directing the movement of drugs. On 10th January 2017 another man was arrested in possession of a firearm, £3,000 cash, approximately half a kilogram of cocaine and 226 grams of heroin, with mobile phones containing messages from the appellant relating to drugs. On 12th January 2017 the appellant was arrested and further mobile phones were found indicating continuing supply of Class A drugs. On 23rd December 2017 the appellant was involved in violent disorder for which he received sixteen months’ imprisonment on 21st August 2018, which he had served by the date of sentence for these offences.

The prosecution accepted a basis of plea. The appellant admitted being a user and supplier of cocaine and heroin from time to time. He said the drugs seized on 17th December 2015 were for personal use but accepted the phones revealed street-level supply activity. He admitted the drugs on 2nd March 2016 were his and that phones showed further supply. He denied that messages to and from his brother concerning importation or supply were genuine, claiming bravado. He accepted the drugs seized on 18th August 2016 were part of supply. Although the stun gun was not in his custody or control, he accepted it formed part of the ongoing criminal activity in which he was knowingly involved. He accepted that text messages referring to drug-dealing activity were evidence of his conduct in such supply. He accepted the period of involvement alleged but said his criminality fluctuated depending on financial need and drug habit.

The sentencing judge accepted that the offending fell into category 2 significant role of the sentencing guidelines for drug offences, with a starting point of eight years’ imprisonment and a range of six and a half to ten years. His Honour Judge Slater took a starting point of eight years and disregarded the appellant’s previous conviction as an aggravating factor. He identified aggravating features as the length of time dealing in two types of Class A drugs, the fact of continued offending whilst on bail, the high purity of the drugs and the presence of the stun gun (although not specifically charged). The judge increased the starting point from eight years to twelve years. He identified mitigating factors, namely that the appellant had been a user of drugs and initially became involved to alleviate personal problems before moving from using to dealing, that he was remorseful, would be away from his partner and young children for a long time, and had only recently been released from his first custodial sentence. The judge accordingly reduced the starting point to ten years. He further reduced the sentence by twenty per cent to reflect the guilty pleas, resulting in a total sentence of eight years’ imprisonment. It was accepted that twenty per cent was the appropriate reduction for plea.

The single ground of appeal was that the judge erred in adjusting the starting point to twelve years’ imprisonment. Mr Thomas, appearing for the appellant, submitted that having taken a starting point of eight years, when considering aggravating factors the judge erred in increasing it to twelve years, which was beyond the top of the category range and elevated it into category 1. It was submitted that the adjustment should be within the category range and that the increase to twelve years was manifestly excessive. Counsel acknowledged that the guidelines indicate that in some cases, having considered relevant factors, it may be appropriate to move outside the identified category range, but submitted that the judge identified no reason to justify such movement.

The court held that this was persistent offending over a period of about a year. The Class A drugs were of high purity. Significant quantities of both heroin and cocaine were involved and the appellant repeatedly offended whilst on bail. The presence of a stun gun was an aggravating factor. The offending merited a substantial custodial sentence. The court noted that the judge correctly identified the mitigating factors and sentenced the appellant having regard to the basis of plea. The court observed that some judges may have taken a lower starting point than twelve years and some judges would have regarded the matters of mitigation as meriting significantly less credit than the sentencing judge allowed. The question was whether the total sentence could be said to be either wrong in principle or manifestly excessive. Having considered the totality of the offending, the court did not regard the sentence of eight years’ imprisonment as either wrong in principle or manifestly excessive. The ten year starting point before credit for guilty plea was entirely justified and the twenty per cent reduction for plea was appropriate. In short, the appeal was dismissed because the eight year sentence was neither wrong in principle nor manifestly excessive given the persistence of the offending, the high purity and quantity of drugs, the repeated offending on bail and the presence of a stun gun.