R v Elis Kola

For Category 3 street dealing under the Definitive Sentencing Guidelines, a significant role requires evidence of an operational or management function, or involvement of others. Distance from home, possession of cash and use of a phone do not, without more, establish that role. Sentencing inferences must be supported by evidence and cannot rest on assumptions about hypothetical deleted messages or their content. First-offender status, immediate assistance to police and the absence of aggravating features may justify sentencing at the bottom of the applicable range.

Following conviction in the Crown Court at Cambridge for possessing cocaine with intent to supply, the appellant was sentenced to three years' imprisonment by Mr Recorder Giuliani. The Recorder treated him as having a significant role in Category 3 street dealing and adopted a starting point of four and a half years.

The appellant appealed against sentence. The central issue was whether the evidence justified treating him as a significant rather than lesser participant and whether the sentence should be reduced.

1. Appeal allowed. The Recorder erred in treating the appellant as having a significant role. There was no evidence that his function was operational or managerial, or that he involved others in the drugs operation. Being a long way from home was consistent with his being a County Lines runner and did not establish a significant role. On the evidence, he was no more than a courier.
2. The Recorder was entitled to infer financial motivation from the absence of an explanation for the offending. That did not justify attributing significant financial gain on the basis of £180 found in the car. The inference that the appellant had deleted drug-related messages because he had his phone in his hand and no such material was found was not reasonably open on the evidence. Nor could it support assumptions about the content of hypothetical deleted messages. The criminal standard was not met.
3. The correct starting point was three years. No other aggravating features were identified. The appellant's first offence and immediate indication to police of where the drugs were found constituted significant mitigation and justified moving to the bottom of the range. The Court also took account of the additional difficulty of imprisonment arising from his Albanian nationality and limited English.
4. The Court lacked the material required to evaluate suspension under the applicable guideline. Having regard to time already served and the likelihood of near-term release, it substituted a determinate sentence of 18 months.

• Court of Appeal (Criminal Division): The appeal against sentence was allowed and a determinate sentence of 18 months was substituted.
• Crown Court at Cambridge: Following conviction for possession of cocaine with intent to supply, Mr Recorder Giuliani imposed three years' imprisonment, treating the appellant as having a significant role in Category 3 street dealing.