Arusha, R. v

A substantial and inadequately explained delay may justify refusing an extension of time to seek leave to appeal against sentence. A sentencing judge is not bound by a written basis of plea, but must make any intended departure clear so that the defence can decide whether to seek a Newton hearing or make submissions on the available material.

A defendant described as a courier may nevertheless have a significant role where the quantity, value, concealment and circumstances of possession demonstrate knowledge and involvement beyond a limited function. In serious commercial drug operations involving quantities far exceeding the highest guideline category, a severe starting point may be justified by the offender’s role.

The applicant pleaded guilty at the Crown Court at Inner London to possession of cocaine with intent to supply, possession of an identity document with improper intent, and driving offences. He was found transporting 27 one-kilogram blocks of high-purity cocaine concealed in a specially adapted compartment in a car. He received ten years’ imprisonment for the cocaine offence after credit for his guilty plea.

He applied 642 days late for an extension of time to seek leave to appeal against sentence. He contended that the judge should have sentenced him solely as a lesser-role courier under his written basis of plea, or adopted a substantially lower starting point. The central issues were whether the delay should be excused and whether the sentence was manifestly excessive.

1. The applications were dismissed. The court refused the 642-day extension of time. The explanation did not account adequately for why the applicant took no step for about a year and a half before instructing new solicitors.
2. In any event, the court would have refused leave to appeal against sentence. A sentencing judge is not bound by a basis of plea. Where the judge proposes to depart from it, the departure must be made clear so that the defence can decide how to proceed. The court referred to R v Underwood [2004] EWCA Crim 2256, R v Lucien [2009] EWCA Crim 2004, and the Criminal Practice Directions 2015.
3. Here, both the prosecution and the judge made clear that they did not accept the applicant’s portrayal of his role as limited. Defence counsel could have sought a Newton hearing or made submissions on the existing material. He chose the latter course. The judge was therefore entitled to sentence on a basis not confined by the written plea, and it was too late to raise that complaint on appeal.
4. The applicant’s entrustment with 27 kilograms of cocaine of substantial value, his use of a vehicle with a sophisticated concealment, his knowledge that the packages contained class A drugs, and the timing of his payment supported the conclusion that he had a significant role. The quantity was relevant evidence of role and did not amount to impermissible double counting.
5. The operation was serious and commercial, involving more than five times the maximum quantity in Category 1 of the guideline. The court considered that the guideline’s indication that sentences above 20 years may be appropriate was engaged, although this offender’s role did not justify such a starting point. A 15-year starting point after trial was severe but not manifestly excessive. R v Nunez-Lopez [2015] EWCA Crim 1451 provided a relevant analogy.

• Court of Appeal (Criminal Division). In [2019] EWCA Crim 183, refused an extension of time to seek leave to appeal against sentence and dismissed the applications.
• Crown Court at Inner London. On 3 November 2016, following guilty pleas, imposed ten years’ imprisonment for possession of cocaine with intent to supply, with concurrent and no separate penalties for the remaining offences.