R v Damilola Ogundeyin

For drug-supply sentencing, role classification under the Sentencing Council guidelines turns on the offender’s culpability and function within the operation. A large quantity or high purity of drugs, proximity to the source and recipient, and an apparently professional operation do not, without more, establish a significant role or awareness of the operation’s scale. Where the evidence shows only courier, keeper or storer activity, no operational or management function, no involvement of others, and no significant reward, the lesser-role category is appropriate. The offence may nevertheless be placed at the top of that category’s range for aggravating features, with limited mitigation not requiring a reduction.

The applicant renewed his application for leave to appeal against a nine-year sentence imposed at the Crown Court at Croydon after his conviction for supplying three kilograms of cocaine. He had been acquitted of other counts. The appeal was four days out of time. The Court of Appeal granted an extension, waived the procedural requirements, and granted leave. The issues were whether the sentencing judge had placed the offending in the wrong role category, overvalued a historic conviction, and insufficiently recognised mitigation. The central issue was the proper classification of the applicant’s role in the drug-supply operation.

The appeal was allowed to the extent that the sentence was quashed and a sentence of seven years’ imprisonment substituted.

1. Extension of time. Criminal Procedure Rules r 36.4 required an application for an extension and reasons for non-compliance. The court accepted the explanation for the four-day delay, granted the short extension and waived the procedural requirements to avoid any risk of injustice, while emphasising the importance of future compliance.
2. Role classification. The sentencing judge had placed the offending in the category 2 significant-role range. The evidence established only that the package had been delivered while the applicant was away, that he held it for one night, and that it was physically in his possession for about 20 minutes before transfer. The prosecution’s description of him as a courier, keeper or storer was more consistent with a lesser role.
3. The evidence did not establish an operational or management function, involvement of others, or a significant reward. The absence of direct communication between the applicant and the recipient was consistent with a third party directing the transaction. The quantity and purity of the drugs, the applicant’s proximity to the source and recipient, and the professionalism of the operation did not alone justify a significant-role classification or a safe inference that he understood the scale of the operation.
4. The offence should therefore have been placed in category 2 lesser role, with a starting point of five years and a range of three and a half to seven years. The judge was nevertheless entitled to sentence at the top of that range because of the quantity and purity of the drugs, the professionalism of the operation, and the absence of vulnerability, naivety or exploitation. The mitigation was limited, and no downward adjustment was required.

• Court of Appeal (Criminal Division) — In [2024] EWCA Crim 742, the court granted an extension of time and leave to appeal, allowed the sentence appeal to a limited extent, quashed the nine-year sentence and substituted seven years’ imprisonment.
• Single judge — Refused leave to appeal against sentence.
• Crown Court at Croydon — Following conviction by a jury, sentenced the applicant on 7 December 2023 to nine years’ imprisonment for supplying cocaine.