R v Michael John Burns

An extension of time for a criminal sentence appeal may be granted where there is a good reason for delay and, ordinarily, significant injustice would otherwise result. The court must weigh the proposed appeal’s merits against the interests of finality. Under a drug sentencing guideline, pressure or coercion already reflected in a significant-role classification should not produce a further reduction in role. Sentencing must reflect the quantities established by the undisputed basis of plea. A court should not impose a sentence outside the applicable category range without proper justification. Deterrence does not remove the requirement for an overall sentence that is just and proportionate. An applicable guilty-plea reduction must then be made.

The applicant pleaded guilty at the pre-trial preparation hearing to conspiracies to supply cocaine and cannabis. On 22 April 2021, Liverpool Crown Court sentenced him to 12 years’ imprisonment for the cocaine conspiracy and three years concurrently for the cannabis conspiracy. He did not appeal within the statutory 28-day period and required an extension of 752 days.

He contended that the sentencing judge had adopted too high a starting point for the cocaine conspiracy and had failed adequately to allow for personal mitigation, including pressure arising from a substantial debt. The central issues were whether time should be extended, whether leave to appeal should be granted, and whether the sentence was manifestly excessive.

1. The court granted the substantial extension of time and leave to appeal. The delay was explained by the original negative advice on appeal, and the proposed grounds had sufficient force to justify considering the merits. The interests of justice, including the finality of Crown Court judgments, had to be balanced against the risk of significant injustice.
2. The applicant properly fell within the significant-role category rather than the leading-role category. The guideline’s significant-role category for Class A drugs carried a starting point of 10 years and a range of nine to 12 years. The pressure, coercion and debt affecting the applicant had already been reflected in that classification. It did not justify placing him in a lower category or otherwise duplicating the same mitigation.
3. The assessment of gravity had to reflect the quantities established by the undisputed basis of plea. Although the EncroChat messages referred to larger quantities, the relevant cocaine quantity was four to eight kilograms and the cannabis quantity was 10 to 15 kilograms. The judge had also apparently reversed the relative quantities of cocaine and cannabis. The aggravating features, including organisation, EncroChat use, previous convictions and expected financial gain, were properly identified.
4. The 12-year sentence was justified at the top of the significant-role range. However, the provisional sentence of 16 years before credit for the guilty plea was outside that range and lacked adequate explanation. Deterrence is a legitimate sentencing purpose, but it did not justify an unexplained departure from the guideline or displace the requirement for an overall sentence that is just and proportionate.
5. At step 5 of the guideline, the sentence had to be reduced by 25 per cent for the guilty pleas. The sentence for count 1 was therefore quashed and replaced with nine years’ imprisonment. Count 1 remained the lead offence incorporating the criminality in count 2. The three-year concurrent sentence on count 2 and the other orders remained in force.

• Court of Appeal (Criminal Division): On 7 February 2024, granted an extension of time and leave to appeal, quashed the sentence on count 1 and replaced it with nine years’ imprisonment; the sentence on count 2 and other orders remained unchanged: [2024] EWCA Crim 160.
• Liverpool Crown Court: On 22 April 2021, HHJ Potter sentenced the applicant to 12 years’ imprisonment for the cocaine conspiracy and three years concurrently for the cannabis conspiracy.