R v Matthew Wharlow & Anor

The totality principle requires the overall sentence to reflect all offending, relevant aggravating and mitigating factors, and personal factors, while remaining just and proportionate. Where related offending is sentenced separately, a further sentence should run concurrently if the sentence already being served provides just and proportionate punishment for all the offending. In assessing a drug offender’s role under the definitive guideline, the sentencing judge may treat operational work within a chain, awareness of the operation’s scale, appreciable travel, entrusted use of an EncroChat device and financial gain as inconsistent with a lesser role. An appellate court should respect that assessment where it is open on the evidence.

Both appellants were sentenced at the Crown Court at Leicester for their roles in a large-scale cocaine conspiracy. Wharlow received ten months’ imprisonment, consecutive to a sentence imposed at the Crown Court at Harrow for related offending involving 78 kilograms of cocaine. He argued that the Leicester sentence should be concurrent because the existing sentence already reflected his offending.

Poole received six years and eight months’ imprisonment after being categorised as playing a significant role. He accepted direct involvement in delivering more than 1.5 kilograms of cocaine but argued that his role was lesser. The appeals concerned totality and the proper role categorisation under the relevant sentencing guideline.

The appeals were determined separately. Wharlow’s appeal was allowed to the limited extent that the sentence was made concurrent. Poole’s appeal was dismissed.

1. Wharlow: totality. The overriding principle in the totality guideline is that the overall sentence must reflect all the offending behaviour, the aggravating and mitigating factors relating to the offences, and the factors personal to the offender. It must also be just and proportionate. The court accepted that, had all the matters been before the court together, the additional one-kilogram movement would have been one of six similar courier occasions. The much greater quantities involved in the Harrow proceedings and the fact that the lead offence there was importation meant that the sentence already being served provided just and proportionate punishment for all the offending. The consecutive term was therefore quashed and a ten-month sentence running concurrently was substituted.
2. The court did not alter the length of the sentence, despite noting an indication that a concurrent sentence of about seven years would otherwise have been imposed. This avoided any possible argument about the effect in the circumstances of section 11(3) of the Criminal Appeal Act 1968.
3. Poole: role categorisation. The sentencing judge was fully apprised of the circumstances and was best placed to assess the comparative roles and culpability of the conspirators. He was entitled to find that Poole played a significant role. The use of an EncroChat device and travel to different parts of the country were inconsistent with a limited function under direction and very little awareness of the operation’s scale. They were more consistent with an operational function within a chain and some awareness of its scale. The temporary loan of the device remained particularly significant because it indicated trust, security responsibilities and serious criminal activity. The court also rejected the submission that Poole’s payments represented no more than modest financial gain. The role categorisation was not erroneous, and the challenge to the sentence and guilty-plea credit consequently failed.

• Court of Appeal (Criminal Division). In [2023] EWCA Crim 1613, Wharlow’s appeal was allowed to the extent that his ten-month sentence was substituted to run concurrently with his existing sentence. Poole’s appeal was dismissed.
• Crown Court at Leicester. On 10 January 2023, the court sentenced Wharlow to ten months’ imprisonment and Poole to six years and eight months’ imprisonment for their respective roles in the cocaine conspiracy.