Regina v. Frederick Pargetter
APPEAL AGAINST SENTENCE
I have been asked to advise Mr Pargetter on his prospects of successfully appealing against a 12 month sentence of detention in a young offenders’ institution, imposed by Her Honour Judge Langford at the Borsetshire Crown Court on 28th September 2018.
Unfortunately those instructing have neither invited me onto the digital case system nor supplied me with a full set of prosecution papers, and I have seen only a short extract from HHJ Langford’s sentencing remarks. Nor, despite my repeated requests, have they supplied me with a copy of the pre-sentence report. I do not even know whether his plea was entered on any particular agreed basis. I understand the pressures that many rural solicitors are under, but this is a disappointing level of service from a once well-respected Ambridge firm which perhaps ought to reconsider its commitment to criminal work if it cannot provide a proper service. Nevertheless, piecing together the information that I do have as best I can, the position seems to be as set out below.
In August of this year Mr Pargetter was arrested at a “stag” party on suspicion of possessing about 25 tablets of drugs with intent to supply. Those instructing have been characteristically vague about what drugs these were, although it may not in fact be of huge significance given that they were unquestionably Class A. For the purposes of this advice I shall assume that they were methylenedioxymethamphetamine, otherwise known as MDMA or, more colloquially, “ecstasy”. Further investigation revealed that Mr Pargetter had been supplying a number of users for financial gain over the course of several months. It is unclear whether he faced charges in relation to past supply or merely a single count of possession with intent to supply.
When questioned by the police Mr Pargetter at first claimed that the drugs were for his personal use, but he appears to have accepted at an early stage that he did in fact intend to supply them, and that he had been doing so, for financial gain, for several months.
There does not appear to have been any investigation made of his benefit under the Proceeds of Crime Act. He should count himself fortunate in that respect, at least.
Assistance to the police
An unusual feature of the case is that some two days before the sentencing hearing Mr Pargetter voluntarily went to the police station, accompanied by a representative from those instructing, and revealed that his previous drug supplying had been on a larger scale than the police had appreciated, or that he had originally admitted. No additional charges appear to have resulted from this frank disclosure. He also revealed to the investigating officers the identity of the person from whom he had bought drugs, apparently a young man called “Ellis” who is apparently a significant supplier of Class A drugs in Borsetshire. As a result of this assistance, I understand that the police supplied Judge Langford with a “text” confirming that Mr Pargetter had given them material assistance. In the normal course of events this should have been reflected in a lower sentence than if the assistance had not been given.
The principle is well-established and was set out by the Lord Chief Justice in R v. A  1 Cr. App. R. (S.) 52:
It has been the long-standing practice of the courts to recognise by a further discount of sentence the help given, and expected to be given, to the authorities in the investigation, detection, suppression and prosecution of serious crime: see, for example, Sinfield (1981) 3 Cr.App.R.(S.) 258 , King (1985) 7 Cr.App.R.(S.) 227 , Sivan (1988) 10 Cr.App.R.(S.) 282 . The extent of the discount will ordinarily depend on the value of the help given and expected to be given. Value is a function of quality and quantity. If the information given is unreliable, vague, lacking in practical utility or already known to the authorities, no identifiable discount may be given or, if given, any discount will be minimal. If the information given is accurate, particularised, useful in practice, and hitherto unknown to the authorities, enabling serious criminal activity to be stopped and serious criminals brought to book, the discount may be substantial. Hence little or no credit will be given for the supply of a mass of information which is worthless or virtually so, but the greater the supply of good quality information the greater in the ordinary way the discount will be. Where, by supplying valuable information to the authorities, a defendant exposes himself or his family to personal jeopardy, it will ordinarily be recognised in the sentence passed. For all these purposes, account will be taken of help given and reasonably expected to be given in the future.
It would have been open to the Crown Prosecution Service to invite Mr Pargetter to enter into a formal agreement under S.73 of the Serious Organised Crime and Police Act 2005. This might, for example, have contained Mr Pargetter’s agreement to continue to assist the Borestshire Police in their investigations. Had this course been followed then although the learned judge would not have been required to disclose the fact of the agreement in open court, she would, under S.73 (3) & (4) have had to supply Mr Pargetter with a notice setting out what the sentence would have been but for any discount she applied as a result of his assistance to the police. Since no such S.73 agreement was made, the learned judge was under no statutory duty to produce such a notice, and she does not appear to have done so.
As the Court of Appeal made clear in Chaudhury  EWCA Crim 2485, the “text” procedure is still available where the parties choose not to make a S.73 agreement but “save in unusual circumstances, the sentencing discount would be … less for those who adopted the text regime than for those who followed the statutory regime.” Mr Pargetter’s sentence might have been more lenient had the statutory procedure been followed; on the other hand there may be good reasons why he preferred not formally to commit himself to future co-operation with the authorities.
Needless to say, those instructing have not supplied me with a copy of the text, or indeed with any real indication of the attitude of Borsetshire Police and CPS to the assistance provided by Mr Pargetter, or with any explanation as to why he adopted this procedure rather than attempting to formulate a S.73 agreement.
There are statutory sentencing guidelines for the supply and possession with intent to supply of controlled drugs. Since Mr Pargetter was 18 at the time of sentence, these guidelines apply.
The relevant sentencing guideline applicable to Mr Pargetter’s case depends upon two factors:
(a) The category of “harm” (ranging from 1 to 4, with 1 being the most serious); and
(b) The “culpability” determined by Mr Pargetter’s role.
So far as “harm” is concerned, whilst a quantity of 25 tablets of ecstasy would normally fall into Category 4, the guidelines say that “where the offence is selling directly to users (“street dealing”) the category is not based on a quantity.” Street dealing – even in the rural lanes around Ambridge – is a Category 3 offence.
Culpability depends upon which role out of “leading.” “significant” or “lesser” Mr Pargetter played. Since he was “motivated by financial gain” in my view this places him in a “significant” role.
The guidelines suggest a “starting point” for someone playing a significant role in a Category 3 offence: it is 4 years and 6 months.
It is then necessary to consider any aggravating or mitigating factors. None of the (admittedly non-exhaustive) “aggravating factors” set out in the sentencing guidelines applied. This was not a case, for example, involving supply to children, or to other vulnerable people. There was no evidence that the drugs supplied by Mr Pargetter were either of “particularly high purity” or “cut with harmful substances.” The offence was not committed while Mr Pargetter was on bail or on licence. On the other hand there were a number of mitigating features, including Mr Pargetter’s lack of previous convictions, his evident remorse and his comparative youth, all of which ought to have been reflected in a significant reduction in the sentence.
Most importantly, Mr Pargetter’s early guilty plea entitled him to a reduction of one third in the length of prison sentence which would otherwise have been imposed.
The learned judge said in her sentencing remarks (after noting Mr Pargetter’s previous good character and excellent reference from his previous college Deputy Principal):
“I must take into account Mr Pargetter’s privileged background. Which would suggest he dealt in drugs simply because he could. He is not someone who needed to do it for financial gain or any other purpose which I am able to discern. It was entirely his own choice. Having dealt with a number of such cases previously, I have to say that I find this form of drug dealing the most inexcusable. With no purpose other than self-gratification, it is both reckless and uncaring of the consequences for its victims.”
I am troubled by the learned judge’s reference to Mr Pargetter’s “privileged background,” and indeed to the implication that his offence would have been less serious had he “needed to do it for financial gain.” Financial necessity would very rarely, if ever, be considered mitigation for supplying drugs, and for the same reasons, the learned judge fell into error by appearing to regard Mr Pargetter’s “privileged background” as an aggravating feature. Nor is it clear what the learned judge meant by “I find this form of drug dealing the most inexcusable.” Mr Pargetter’s dealing did not involve, for example, the exploitation of children or anyone particularly vulnerable. Instead of making any explicit reference to the sentencing guidelines she gave the appearance of having taken almost capriciously against Mr Pargetter because of his “privileged” background.
Nevertheless, even if the learned judge’s sentencing remarks indicated that she took into account an improper consideration, the Court of Appeal would, ultimately, only interfere with Mr Pargetter’s sentence if it took the view that it was “wrong in principle” or “manifestly excessive.” Having regard to the sentencing guidelines, a custodial sentence was obviously correct in principle.
Was it manifestly excessive? Assuming the judge reduced Mr Pargetter’s sentence by one third for his guilty plea, this would indicate that but for the plea she would have passed a sentence of 18 months imprisonment. Given that the guideline starting point for a Category 3 offence by someone playing a significant role is 54 months imprisonment, that suggests that the learned judge, despite her rather eccentric sentencing remarks, did in fact give substantial credit for the mitigating factors. Indeed, the bottom of the suggested sentencing range for such an offence before credit for a guilty plea is 42 months, equivalent after a guilty plea to 28 months. Mr Pargetter’s sentence, in fact, equates to a Category 4 offence committed by someone in a lesser role.
On the face of it, therefore, a 12 month sentence is clearly not manifestly excessive. Furthermore, even though it is impossible to discern the precise reduction that the learned judge gave as a result of his assistance to the police, it is fairly clear that it must have been substantial.
A suspended sentence?
Any sentence of imprisonment or detention in a young offenders’ institute of 2 years or less can be suspended. The learned judge gave no explanation as to why she chose not to suspend this sentence, although her remarks about Mr Pargetter’s “privileged background” perhaps suggest one possibility. However, given that the sentence imposed is already considerably shorter than that which I would have expected, any appeal based on the argument that she should have suspended the sentence is extremely unlikely to succeed.
Based on the admittedly somewhat incomplete information that I have been given, I regard any attempt by Mr Pargetter to appeal against his sentence as unarguable and doomed to fail.
If those instructing would care to supply me with a full set of papers then I will, of course, be happy to reconsider this advice.
Pump Court Chambers Matthew Scott
October 1st 2018