R v Mark John Shergold

In a drugs conspiracy, the sentencing court must consider the total quantity of drugs seized in determining the offence category. A leading role may be established by one or more guideline characteristics, including substantial links and influence within the chain, an expectation of substantial financial advantage, and the use of a business as cover. Where leading-role and significant-role characteristics overlap, the judge must balance them on the facts. An appellate court should rarely replace a trial judge’s assessment of role because it has not heard the evidence. A disparity challenge requires comparable offending and personal circumstances, together with a difference in sentence that would lead an informed observer to conclude that something had gone wrong with the administration of justice.

The applicant was convicted in the Crown Court at Newcastle-upon-Tyne of conspiring to supply Class A drugs and of possessing criminal property. He received 15 years’ imprisonment for the conspiracy, with concurrent terms for the other offences.

Permission to appeal against sentence was renewed. The applicant challenged the classification of his role as leading, the weight given to mitigation, and the disparity between his sentence and that imposed on a co-conspirator who had pleaded guilty and been assessed as having a lesser role. The central issues were whether the sentencing judge had erred in the role assessment or sentencing exercise, and whether the difference in sentences disclosed a miscarriage of justice.

Appeal against sentence refused.

1. For a conspiracy, the sentencing judge must have regard to the overall amount of drugs seized, rather than only the amount found in the offender’s possession. The six kilograms of cocaine recovered on one day made this a category 1 county lines conspiracy.

2. An appellate court will only exceptionally replace a trial judge’s assessment of an offender’s role where the appellate court has not heard the evidence. It cannot reliably assess the full evidential picture by examining isolated elements of the evidence.

3. The Sentencing Guidelines provided that one or more listed characteristics might demonstrate a leading role. The applicant displayed three such characteristics: substantial links and influence over others in the chain, an expectation of substantial financial advantage, and use of a business as cover. The trial judge was entitled to find that he organised and controlled the operation.

4. Some significant-role characteristics might also be present in a sophisticated conspiracy. That created a balancing exercise for the sentencing judge, who was uniquely placed to resolve the issue on the facts. The attribution of a leading role was justified.

5. The sentencing judge had considered the applicant’s mitigation, including delay and personal circumstances. The aggravating factors, particularly his previous convictions and participation in a leading role while under post-custody supervision, slightly outweighed the mitigation. A modest increase from the 14-year guideline starting point to 15 years was therefore permissible and remained within the guideline range.

6. A disparity argument requires both comparable offending and personal circumstances, and a difference in sentence which would lead an informed observer to conclude that something had gone wrong with the criminal justice system. The co-conspirator’s lesser role, guilty plea, absence of previous convictions, and different basis of plea meant that the cases could not sensibly be compared. The disparity was justified.

The necessary extension of time was granted, but the appeal against sentence was refused.

• Court of Appeal (Criminal Division): Permission to appeal against sentence was renewed, a short extension of time was granted, and the appeal was refused.
• Crown Court at Newcastle-upon-Tyne: The applicant was convicted on 27 September 2021 and sentenced on 9 December 2022 to 15 years’ imprisonment for conspiracy to supply Class A drugs, with concurrent terms for possessing criminal property.