Regina v Mark Thone & Ors

In sentencing for a multi-transaction drug conspiracy, the court may consider aggregate quantity, but must assess each offender’s culpability and reflect factors limiting that individual’s part. Membership of the wider conspiracy remains aggravating, particularly where the offender knows its scale. On a Newton hearing, a guideline category must be supported by the evidence. A guilty plea reduction depends on when an intention to plead guilty was indicated, not merely on admissions in interview. Apparent disparity with a co-defendant is not a ground of appeal unless it suggests that something has gone wrong with the administration of justice. Where a count substantially overlaps earlier admitted offending, the court must avoid double punishment and apply the appropriate plea reduction.

Four defendants challenged sentences imposed by His Honour Judge Brown in the Crown Court at Leicester. Mark Thone appealed against a total sentence of 10 years and 6 months’ imprisonment; Baljit Kandola appealed against 2 years and 6 months; and Mark Unsted and Adam Dooley renewed applications for leave to appeal against sentences of 20 years each.

The appeals concerned the assessment of role and drug quantity in a conspiracy, disparity with a co-defendant, the timing and extent of guilty plea credit, overlap between indictments, and the findings required following a Newton hearing.

1. Outcome. Mr Thone’s appeal was allowed to the extent that the sentence on the overlapping Buster count was quashed and replaced with 9 years’ imprisonment, concurrent with the other sentences, reducing the total sentence to 9 years. Mr Kandola’s appeal was allowed and his sentence reduced to 20 months. The applications by Mr Unsted and Mr Dooley were refused.
2. For participants in a conspiracy involving multiple supply transactions, the sentencing court may consider the aggregate quantity. It must assess the individual offender’s role and take account of factors limiting that person’s part relative to the whole conspiracy. It may also reflect the wider course of criminal activity and the offender’s awareness of the scale of the enterprise. The court applied the guidance in R v Khan [2014] 1 Cr. App. R. (S.) 10. The trial judge had heard the evidence and recordings, and there was no arguable error in finding that Unsted and Dooley played leading roles. Apparent disparity with Mr Moth did not provide a ground of appeal. The principles in R v Fawcett [1973] 5 Cr. App. R. (S.) 158 and R v Wilson [2018] 1 Cr. App. R. (S.) 25 applied.
3. For a guilty plea, the first stage of proceedings is normally the first hearing at which a plea or indication of plea is sought and recorded. A one-third reduction applies where a guilty plea is indicated at that stage; after that stage the maximum reduction is one quarter. Mr Thone’s admissions in interview did not alter the fact that the magistrates’ court hearing was the first stage and that the Better Case Management form recorded an intention to plead not guilty.
4. Although the Buster and Nebule counts were not formally duplicitous, by sentence the prosecution and judge treated the Buster count as concerning conspiracy to supply amphetamine. The only offending covered by it was therefore the offending to which Mr Thone had already pleaded guilty on the Nebule indictment. The sentence on that count ought consequently to have received the one-quarter reduction.
5. At the Newton hearing concerning Mr Kandola, the judge found that he collected cannabis exceeding 1 kg and was a multi-kilo dealer, but did not specify the quantity. The bags could not physically have contained anything approaching the indicative quantity for category 2. The offending therefore fell within category 3. A sentence of 22 months would have been appropriate after trial, and the operative sentence was reduced to 20 months after allowing limited credit for the guilty plea.

• Court of Appeal (Criminal Division): In [2022] EWCA Crim 846, Thone’s and Kandola’s appeals were allowed to the stated extent, while Unsted’s and Dooley’s applications were refused.
• Crown Court at Leicester: His Honour Judge Brown imposed the challenged sentences between 7 and 9 September 2021.