Osei-Ababio [2019] EWCA Crim 380

Regina v Afreh Osei-Ababio [2019] EWCA Crim 380 concerned an appeal against sentence by the Court of Appeal (Criminal Division), which was dismissed.

On 11 July 2018 before His Honour Judge John at Kingston-upon-Thames Crown Court, the appellant pleaded guilty to possessing Class A controlled drugs with intent to supply, contrary to section 5(3) of the Misuse of Drugs Act 1971, and to possession of criminal property, contrary to section 329(1)(c) of the Proceeds of Crime Act 2002. He was sentenced to five years eleven months’ imprisonment for the drugs offence and twelve months consecutive for the money laundering offence. The appellant, aged 47, appealed with leave of the single judge.

On 17 January 2018 police attended a property in Wye Street SW11 to arrest another individual. They smelled cannabis, entered and saw the appellant, who said he was house-sitting. In the bedroom he occupied, police found packages containing a total of 24 grams of crack cocaine with a purity of between 80% and 93%. The judge declined to permit particularisation of other substantial quantities of crack cocaine found elsewhere in the premises. Also found in the appellant’s room was cash totalling £11,125, along with electronic scales and a flick knife. Mobile phones and SIM cards were recovered, for two of which the appellant accepted responsibility. One SIM contained messages relating to drugs dealing. His DNA was found on the inner wrappings of some of the drugs. In interview he disputed that the drugs or cash were his and denied being the occupier.

At sentence the judge considered whether the appellant had played a leading or significant role under the Sentencing Council’s Definitive Guideline on possession with intent to supply Class A drugs. The judge recognised there were features capable of falling into both categories and concluded that the appellant fell on the cusp between leading and significant. The judge identified three aggravating features: the high value of the drugs, previous convictions, and the fact that he was on licence at the time of offending. The appellant had 22 sets of previous convictions comprising 53 offences, largely for dishonesty including burglaries and robberies. In June 2007 he had been sentenced to an indeterminate sentence with a minimum term of three years for robbery, breach of licence and possession with intent to supply Class A drugs, and had served six years before release in August 2013. He had therefore re-offended in a similar way within five years of his release. The judge allowed a small amount of credit for personal mitigation and 15% credit for a late guilty plea.

On appeal Ms Bald submitted that the judge should have placed the appellant squarely within the significant role category. She argued that the sum of money was not so large as to support a leading role, that the wraps suggested he was further down the chain undertaking more risky aspects of the venture, and that only one of the phones appeared to have been used for street level dealing.

Her Honour Judge Wendy Joseph QC, sitting with Mr Justice Popplewell, rejected that ground. The court emphasised that this was not a case of street dealing of half a gram on a street corner but clearly a substantial ongoing operation with drugs of high purity, no doubt yet to be cut, with the appellant firmly in its midst. The court held that the judge was entitled to look at all the features and to recognise that it contained aspects of both categories. The court observed that things do not always neatly fall into a particular category. The court concluded that the judge was right to treat each aggravating feature as such, and that taken together they must move the sentence significantly upwards. The sentence of five years eleven months was held to be entirely proper.

On the money laundering count, complaint was made that the sentence was consecutive and that no reduction had been made for totality. The judge had concluded that the appellant played a significant role as part of a group and fell into category B medium culpability. Harm was assessed on the basis of the sum of £11,125 at the bottom of category 5, which has a range beginning at six months’ imprisonment. The judge noted that category 6, applicable to figures under £10,000, has a top end range of one year. The judge recognised the level of harm associated with the underlying offences, the money being the product of drugs dealing, and described Class A drug dealing as a pernicious offence which ruins people’s lives. He concluded that an appropriate sentence for this offence was fifteen months and gave credit for the guilty plea.

The court observed that had the judge structured the matter so as to impose concurrent sentences, the sentence on count 1 would have had to be raised accordingly to represent this other wrongdoing which represented separate and in effect earlier dealing, and no possible complaint could have been made had he done so. The court acknowledged that the judge did not specifically address the guideline issued by the Sentencing Council on Offences Taken into Consideration and Totality, and that it undoubtedly would have been better had he done so. However, the court considered whether the sentence was wrong in principle or manifestly excessive. The court concluded that though it might be described as harsh for the totality of the offending, it was neither wrong in principle nor manifestly excessive. In short, the Court of Appeal found the overall term of seven years lawful and declined to interfere, dismissing the appeal.