No: 2016/5098/A4 
Neutral Citation Number: [2017] EWCA Crim 968
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand 
London, WC2A 2LL 

Wednesday 5 July 2017

B e f o r e: 
LORD JUSTICE IRWIN 

MR JUSTICE HOLROYDE 

HIS HONOUR JUDGE DICKINSON QC 
(Sitting as a Judge of the CACD) 

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R E G I N A 

KURUSH MIAH

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Non‑Counsel Application

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J U D G M E N T
1.	MR JUSTICE HOLROYDE:  On 10th June 2016 in the Crown Court at Southwark this applicant pleaded guilty to offences of conspiracy to supply a controlled drug of class A, namely heroin and cocaine.  On 13th October 2016 he was sentenced by His Honour Judge Leonard QC to concurrent terms of six‑and‑a‑half years' imprisonment on each of the two counts on the indictment.  His application for leave to appeal against that sentence was refused by the single judge.  It is now renewed to the full court.
2.	It suffices for present purposes to summarise the facts very briefly.  This applicant and others were involved a well‑organised and large scale commercial operation supplying class A drugs in London.  Those who wished to purchase drugs would ring a particular drugs line phone.  Over the indictment period of about five months that phone received on average nearly 700 calls or texts each day.  Deliveries of drugs would then be made using a succession of hire cars, with one of the conspirators acting as driver and another playing the part of handing over the drugs and receiving the payment.  Very considerable care was taken by the conspirators to avoid arrest.  They limited themselves to dealing only with purchasers whom they already knew.  
3.	This applicant's role was as one of the regular drivers.  On one occasion towards the end of the indictment period the police tried to stop his car.  The applicant rammed the police vehicle in order to escape.  Drug dealing continued unabated later the same day.
4.	There was evidence before the court of the significant community impact of this offending.  Local residents were caused misery by the activity of the drug dealers.  Some tried to complain. They were threatened and abused.  
5.	All conspirators were arrested on a date in April 2016.  One was arrested as he left his house.  He was carrying 70 wraps of class A drugs and considerably more of the drugs were found inside the house.
6.	At the first appearance of the various defendants before the Crown Court, which was on 10th May 2016, not all the prosecution evidence had been served.  One defendant entered guilty pleas.  This applicant and others did not.  The case was adjourned for a month.  By the time of the next hearing the evidence had been served; the applicant then entered the guilty pleas to which we have referred.  
7.	The learned judge found that the applicant's role was a significant role in a Category 2 offence for the purposes of the relevant sentencing guideline.  The guideline therefore indicated a starting point of eight years' custody and a range from six‑and‑a‑half years to 10 years' custody.  
8.	In placing the offending into Category 2, the learned judge made an estimate of the extent of the drug dealing.  He identified two different ways of approaching this exercise.  One route was based on the number of calls and texts made each day to the drugs line.  The other route was based on the quantity of drugs found or seized on the day of the arrests.  Those routes yielded different results.  The judge, in fairness to the accused, took the lower of the two estimates.  On any view it was significantly above the total of one kilogram of class A drugs, that being the indicative weight for the purposes of the sentencing guideline.
9.	The judge indicated that in all the circumstances of this offending, prolonged as it was over several months and involving two different class A drugs, the guideline starting point should be increased towards the top of the category range.  He then made a reduction because there was no evidence that this applicant had achieved any substantial financial gain.  However, the judge then treated the incident of ramming the police car as a significant further aggravating feature, which again justified an upwards increase in sentence.  He allowed 25 per cent credit for the pleas entered at the second Crown Court hearing.  By that route the learned judge arrived at the concurrent sentences of six‑and‑a‑half years' imprisonment.
10.	Three grounds of appeal have been advanced in writing.  First, it is submitted that the judge wrongly withheld some of the credit for the guilty pleas.  It is said that at the first hearing all parties and the court agreed that there should be an adjournment and none of the accused was warned that there might be consequences if he delayed the plea until a later hearing.  Secondly, it is said that the judge used "inaccurate and speculative methodology" when assessing the case as falling within Level 2 in the guideline.  Thirdly, it is submitted that the judge gave undue weight to the incident of ramming the police car as an aggravating feature.
11.	Like the single judge, who first considered the case on the papers, we regard these submissions as completely unarguable.  The applicant was entitled to reserve his position until the evidence was served.  Having chosen to do so, however, he could not then claim that he had entered his pleas at the first reasonable opportunity and so was entitled under the sentencing guidance as it then stood to full credit for his plea.  The circumstances of that first hearing showed, as we have indicated, that one of the applicant's co‑accused did enter his pleas on that occasion.  He duly received full credit.  
12.	Secondly, so far as the judge's estimation of the total quantity of drugs was concerned, it is in our view entirely clear that the judge was as fair as he could possibly be to the accused and might well have come in his estimation to a higher total weight.  There could be no complaint of the finding that over the period of five months a total significantly in excess of one kilogram of drugs was dealt by the various conspirators.  We would add that it was of course open to this applicant, if he genuinely contended that a far lower quantity had been involved, to give evidence about it and to tell the court what he said really happened.
13.	As to the third point, it seems to us that the learned judge was perfectly entitled to treat the escape attempt involving the ramming of the police car as a significant aggravating feature.  It demonstrated very clearly the determination of these conspirators to continue their lucrative business of the drugs supply.  
14.	For those reasons, which are essentially the same as those which the single judge expressed in writing when refusing leave, we conclude that there is here no arguable ground of appeal against the sentence.  The renewed application for leave is therefore refused.
15.	The single judge's decision was notified to the applicant on a form which included a warning that if the application was renewed "the full court may make a loss of time order if the application is considered to be wholly without merit, even if it is supported by your legal advisers.  The court will certainly consider doing so if the judge's initials appear in this box."  The single judge had not initialled that box but as the form makes clear that is not a bar to the full court considering whether to exercise its power to make a loss of time order.  
16.	We have no doubt that this renewed application is wholly without merit.  It is not made by counsel who drafted the grounds of appeal, so the applicant cannot claim to have the support of his legal advisers.  No attempt has been made to address the reasons given by the single judge when refusing leave.  A considerable amount of time has been expended by the Court and by the Court's officials in preparing and listing this application for today's hearing.  This unmeritorious application has therefore delayed other more deserving cases.  
17.	In those circumstances, we direct that 28 days of the time which the applicant has spent in custody to date should not count towards his total sentence of six‑and‑a‑half years.