Coming out the other side of Manning
The recent decision in Regina v Darren Dixon  EWCA Crim 797 is interesting for a number of reasons. First, because the Court reflected on the extent to which personal mitigation can be taken into account in a serious offence, second, they grappled with the knotty issue of discount for plea following expert advice, and finally, because the decision provided the final nail in the coffin for those still seeking a substantial reduction in sentence in light of R v Manning  EWCA Crim 592.
The respondent was charged with 15 counts in connection with the importation, conversion, and sale of firearms, making and possession of an explosive substance as well as a number of offences of forgery.
Having pleaded guilty early in the proceedings to two counts of possession of prohibited weapons, the respondent indicated that he intended to plead guilty to the outstanding counts, two weeks before trial. Re-arraignment took place on 23 March 2020, the date the country went into lockdown and sentence was adjourned for the preparation of a pre-sentence report to deal with the issue of dangerousness as well as a psychological report. However, because of the pandemic, the sentence was repeatedly delayed until almost a year after he entered his plea. He received a total determinate sentence of eight years’ imprisonment; a sentence referred to Court by the Solicitor General as being unduly lenient.
A search warrant was executed at the respondent’s home, and he volunteered that there were guns in his bedroom, adding that he had “a bit of an addiction” to guns and further admitting that a couple had been converted. He also admitted to having ammunition and gunpowder, and provided a file on his laptop which contained details of the weapons he had sold, together with the password for the laptop. In addition to 26 firearms and 102 live rounds of ammunition, the police recovered firearm parts, spent cartridges, equipment for converting firearms, ball bearings, cutting equipment, and used targets.
The respondent lived with his partner and their two-year-old daughter, and all of the items found were kept unsecured. 16 of the 26 identified firearms were prohibited, the remaining 10 were deactivated or not forward venting, but each was capable of being converted.
He had imported prohibited blank firing firearms from overseas and sold four of those on for profit, although he had not converted or modified them prior to sale.
In addition to the firearms and other ammunition, police recovered false Metropolitan Police warrant and identity cards, balaclavas, Metropolitan Police issue body armour, and other equipment demonstrating a high level of interest or fascination with military and policing equipment.
He was interviewed by police officers over two days and answered all questions ‘no comment’.
The sentencing hearing which took two days, included evidence from two psychologists, a PSR, which though finding him dangerous concluded that he was remorseful and took full responsibility for his participation in the offences, letters from family members and the prison chaplain, and a sentencing note prepared by both prosecution and defence.
Those two notes were poles apart in terms of where the offence fell; the prosecution submitting that it was A1 and justified a life sentence, the defence that it was B3 and could be met with a determinate sentence. They also submitted that he should not be penalised in terms of credit for his late guilty pleas because the defence had instructed an expert to advise upon the classification of the firearms.
Discussion and Decision
No longer pursuing the stance adopted at sentence, it was submitted on behalf of the Solicitor General, that the offending was at the top end of category B and the harm, though sophisticated commercial offending, was not quite at the large-scale level necessary to place it in Category 1. However, the multiple factors relevant to categorisation, the potential harm arising from his children having access to the weapons and from the possibility of the weapons falling into criminal hands, together with the need to reflect the totality of the offending, justified a considerable uplift from the 10-year starting point for category 2B namely a sentence, absent mitigating factors of 16 years’ imprisonment.
In addition, whilst it was accepted that the respondent’s remorse and lack of maturity justified a reduction, the 20% reduction for the guilty plea was too high given that the plea was indicated only two weeks before trial. The delay between plea and sentence was not a mitigating factor because time spent on remand is credited towards sentence. Finally, although that period was longer than it might have been, it did not reduce either his culpability or the harm caused by his offending. The 18-month reduction on account of prison conditions during the Covid-19 pandemic was excessive and unnecessary, and the court should not have given any ‘Covid’ reduction at all.
The respondent submitted that the categorisation at sentence, namely 2B, was correct and relied upon his fascination with the army as his motivation for the offending rather than any deep-seated criminal intent. It was also argued that the effect of the pandemic in this case was significant and had been properly reflected in the sentence. Further, the conditions in prison during the pandemic (which in this case included confinement to his cell, no hot water, no visits, or purposeful activities) amounted to additional punishment which should be reflected in the sentence either as a specific Covid reduction, or as part of general mitigation in accordance with ordinary sentencing principles.
Dealing with the delay of the sentencing hearing, the Court agreed that it was longer than would normally be necessary or acceptable. They also accepted that the repeated listings and removals from the list had led to additional anxiety for the respondent and his family, and rejected the submission on behalf of the Solicitor General that it was of no relevance to sentence. However, they confirmed that its significance was limited.
What they felt was of greater significance was the effect of the pandemic and the conditions in prison on the respondent’s sentence, noting that the conditions in Wandsworth Prison would be wholly unacceptable in normal times. But they said that the decision in Manning related to prison conditions during the pandemic in the context of the decision whether a sentence of imprisonment could, or should, be suspended. The court’s focus in that case was on much shorter sentences than those in the current case and reflecting that in the context of the proportion of a much longer sentence, twelve months of living in Covid conditions is less than it would be in respect of a shorter sentence.
That didn’t mean that the impact of Covid conditions should be ignored. Where a custodial sentence is suspended the effect of the decision in Manning and the application of ordinary principles may often mean that the defendant avoids the harsh prison environment altogether. In this case, the Court accepted that the respondent had lived through the conditions described for well over a year. Consequently, they were satisfied that the impact of the pandemic on prison conditions should be reflected in the sentence but that a reduction of 18 months was not justified, even in the unusual circumstances of this case. Taking the combination of the delay in sentence and the prison conditions together should have reduced the sentence by no more than six-months.
Similarly, when considering the issue of credit for plea, the Court took the opportunity to re-visit the decision in R v Plaku  EWCA Crim 568, which was the subject of an E-Bulletin by Kannan Siva a few weeks ago. Looking at the level of the reduction in that case, Holroyde LJ confirmed that the reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of trial, having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date (subject to the exceptions in section F). He also confirmed that “the section F exceptions referred to…. cover a number of situations. The application of any of those exceptions in a particular case will of course be a fact-specific decision, and a court making that decision will be careful not to go beyond the limited terms of the exception. Fairness to all defendants, in all courts, requires that the exceptions should not be extended beyond their proper scope”.
In this case, it was submitted that the respondent had to await the expert advice on the classification of the firearms before his legal team could advise him as to plea. Whilst accepting the correctness of that approach, the Court nonetheless said that “it overlooks the reality that the respondent knew the classification of the firearms. He was buying and selling them. He had the Prosecution report which confirmed what he knew. He was entitled to wait for the result of his investigation to decide how to plead but on a proper application we cannot accept that he was entitled to a reduction in the sentence of 20%”.
Taking all of those factors into account, the Court held that the correct starting point for a 2B offence was one of 10 years. The aggravating factors identified and the fact that this was a sentence for three offences and had to reflect the entirety of the criminality, justified a significant upwards move from 10 years, beyond the range, to 15 years. They then reduced that to 13 years to reflect the mitigation, the delay, and the Covid conditions in prison, finally reducing it by 15% to take account of the guilty pleas, the Court considered that the appropriate sentence was one of 11 years.
So, this is yet another, in a series of cases in which the Court of Appeal has taken the opportunity to stress the limited application of Manning. And whilst it remains the case that a significant delay in sentence, and/or a significant deterioration in the conditions in prison whilst awaiting sentence or on any custodial sentence to be served, can still be used to swing the pendulum away from a custodial to a suspended sentence it can’t be used to significantly reduce the term of a longer sentence.
Similarly, although a defendant who pleads guilty having waited for expert advice will undoubtedly be awarded some credit for that plea, the level of the reduction will be limited to that set out in the Guideline, making the adage ‘he knows what he did’ the trump card and usurping the wait for expert advice.