R v Ben Butler

In a sentencing appeal, the principal offence may be used as the lead offence and sentenced towards the top of the guideline range where the scale and circumstances of the offending justify that assessment, despite mitigating features. A sentence is not manifestly excessive merely because mitigation exists. Where alternative offences arise from the same conduct, a guilty plea to the lesser offence does not become a conviction until sentence is passed. If the defendant is later convicted of the more serious alternative, the proper course is to sentence on that offence and order the lesser count to lie on the file. A no-separate-penalty order is wrong.

This was a renewed application for permission to appeal against sentence. The applicant had pleaded guilty to simple possession of cannabis but not guilty to possession with intent to supply cannabis and money laundering. Following trial, he was convicted of the latter two offences and sentenced to two and a half years’ imprisonment for possession with intent to supply, with a concurrent 12-month sentence for money laundering.

The proposed ground was that the sentence was manifestly excessive. The court also considered the correct treatment of the lesser alternative offence to which the applicant had pleaded guilty. The central issues were whether the sentence was excessive and whether the simple-possession count should have been ordered to lie on the file rather than attracting no separate penalty.

The court rejected the challenge to the length of the sentence. The sentencing judge had correctly treated possession with intent to supply as the lead offence and was entitled to place the offending towards the top of the guideline range for a high-level category 3 offence involving a significant role. That assessment was justified by the dealing observed on the day and the drugs found at the applicant’s home. The judge had taken account of the previous convictions as aggravating features and delay, injuries and current work as mitigation. The sentence was not arguably manifestly excessive.

1. Alternative offences. Where a defendant pleads guilty to a lesser offence charged as an alternative to a more serious offence, the plea does not amount to a conviction unless and until sentence is passed. If the defendant is acquitted of the more serious offence, the court may sentence on the lesser offence. If the defendant is convicted of the more serious offence, the proper practice is to sentence on that offence and order the lesser count to lie on the file. This avoids convictions for two alternative offences arising from the same criminal conduct. The principle was explained by reference to R v Cole [1965] 2 QB 388 and Archbold 2023.
2. The sentencing judge was therefore wrong to order no separate penalty on the simple-possession count. The court granted permission to appeal against sentence, quashed that order and directed that the count lie on the file. Consequently, despite the guilty plea, the applicant was not convicted of simple possession. In all other respects, the appeal was dismissed. The court also noted that the correction should have been announced in open court.

1. Court of Appeal (Criminal Division): On 7 June 2023, the court granted permission to appeal against sentence, quashed the no-separate-penalty order on the simple-possession count, directed that the count lie on the file, and dismissed the appeal in all other respects.
2. Crown Court at Wood Green: The applicant pleaded guilty to simple possession on 30 July 2020. Following trial, he was convicted of possession with intent to supply cannabis and money laundering on 19 December 2022, and sentenced on 27 January 2023.