R v Shane Andrew Howarth

_________________ LORD JUSTICE HOLGATE:

1. On 6 June 2025, the appellant pleaded guilty before the Liverpool Magistrates' Court to one offence of possessing a Class A drug (cocaine) with intent to supply. He was committed to the Crown Court for sentence.

2. On 18 July 2025, in the Crown Court at Liverpool, the appellant was sentenced by Miss Recorder Price to 28 months' imprisonment. He now appeals against sentence with the leave of the single judge.

3. On 22 August 2024, police officers on patrol in the centre of Liverpool observed a vehicle with a defective headlamp. They conducted a routine stop of the vehicle which was being driven by the appellant. A roadside drugs wipe was taken and the appellant tested positive for cocaine. He became agitated and kept changing his story as to where he was going. He was then searched and was found to have two wraps of white powder in his trouser pocket. When asked if he had any more drugs on him, he replied: "Yes, in both shoes". An officer then located another snap bag with seven white wraps. In total 16 wraps were found. The vehicle was searched and a total of £300 cash was found under the driver's steering wheel and in the glovebox. A mobile phone was also seized from the car.

4. The seized 16 wraps were found to contain cocaine, weighing a total of 9.65 grams with a purity of 39 per cent. The street value was between £386 and £965. The mobile phone was downloaded and there was evidence of drugs supply messages and a tick list.

5. When he was interviewed the appellant said that he had purchased the cocaine for personal use and to share with friends for no payment.

6. The appellant was aged 54 at sentence. He had two convictions for three offences. In 2019 he was fined for two offences of driving while under the influence of drugs. In 2021 he was fined for simple possession of cocaine.

7. The author of the pre-sentence report said that the appellant demonstrated genuine remorse for his offending and an unprompted understanding of the harmful effects of his offending on persons who abuse drugs, their families and friends, and other social effects. He appreciated that those who deal in drugs are a key part of the addiction problem in the community. The appellant took full responsibility for his actions and he showed a commitment to change his lifestyle.

8. The appellant had previously worked as a taxi driver for 15 years, but had been unable to find work since 2019 and had accumulated debts. His sister had paid off a loan shark and the appellant was keen to regain employment. He had found one opportunity for work.

9. The appellant also said that he had stopped misusing drugs. An assessment by the author of the pre-sentence report showed that there was no need for any drug treatment intervention. The probability of reconviction and the risk of the appellant causing serious harm was assessed to be low. The author said that if a community based punishment were to be imposed, the appellant did not have any criminogenic areas requiring support, but that a short period of rehabilitation activity requirement would address such matters as decision making, problem solving and drug relapse prevention. Unpaid work would provide a punitive element.

10. In her sentencing remarks the Recorder gave the appellant credit for abandoning his claim that the drugs had been for personal use and for friends. He accepted that he had been selling drugs to fund his own habit and that he had received some financial advantage. The judge said that, applying the guideline, the appellant's culpability involved a significant role, and the harm was category

3. Accordingly, the starting point was four years six months' custody, within a range of three years six months to seven years. Some elements, including the quantity of drugs, pushed the offence towards the lower end of category

3.

11. The Recorder accepted that the appellant had personal mitigation. He had been of good character until the age of

48. He was lightly convicted, and he had no convictions for drug supply. She also accepted that the appellant was clearly someone who was capable of leading a law-abiding life. He had demonstrated remorse, taken responsibility for his actions, and taken steps to address his drug use. In addition, he had not previously been sent to prison.

12. The Recorder said that the offence clearly crossed the custody threshold and was so serious that a sentence of immediate custody was necessary. The appropriate sentence after trial would have been three years six months and, after allowing full credit for the guilty plea, the sentence would be 28 months' imprisonment.

13. We are grateful to Mr Baxter for his helpful and clear written and oral submissions. In summary, he advances two grounds of appeal. First, he submits that the Recorder erred in not further adjusting the starting point downwards to reflect the particular features of the case and the mitigation. Although the guideline states that the starting point for direct supply to users (which may include street dealing and supply in prison) is "not solely based on quantity" but is to be treated as "at least category 3 harm", the court should consider making a downwards adjustment from the starting point of four years six months for that category "considering the quantity of drugs in the particular case". Although he had some awareness of the scale of the operation, the evidence was that the operation was of a modest scale and there was an expectation of only limited financial advantage. There was also substantial personal mitigation and no aggravating features.

14. Secondly, Mr Baxter submits that the sentence imposed was wrong in principle and/or manifestly excessive in that the Recorder had arbitrarily arrived at a sentence of 28 months' imprisonment, only marginally above the two year limit on the power to suspend a custodial sentence. The Recorder had not considered the imposition guidelines which would, on the specific facts, have led to the imposition of a suspended sentence. Discussion

15. We reject the submission that the Recorder acted in breach of the guideline on the imposition of community and custodial sentences when she arrived at a sentence of 28 months' imprisonment. That was the result of applying full credit for the guilty plea to a sentence after trial of three years and six months. That guideline has no bearing on the correctness of either of those two elements of the judge's reasoning.

16. The real question for us is whether, in the application of the drugs guideline, the sentence after trial of three years six months was manifestly excessive, albeit we recognise that the Recorder did have regard to the main factors relevant to sentence.

17. We have come to the conclusion that the appropriate sentence after trial would have been two years and nine months' imprisonment for a number of reasons. There was no suggestion that the appellant was part of a wider network. It appeared to be accepted that the prospect of financial gain was limited. The supply was linked to the funding of a personal addiction, and the amount of drugs involved was relatively small. In particular, there was substantial personal mitigation in this case. The appellant was a man of good character, with a good work record, until the age of

48. After that he was lightly convicted, and had not previously been convicted of drug supply. He had never been to prison before. He had shown genuine remorse and insight, and he had taken steps to end his drug abuse and to find employment. It follows that, after credit for the guilty plea, the sentence should have been one year and ten months' imprisonment.

18. The remaining issue for this court is whether that sentence should be suspended. In favour of suspension, there is the low risk of re-offending and harm; the strong personal mitigation, to which we have referred; the realistic prospect of rehabilitation through the intervention recommended in the pre-sentence report; and the appellant taking steps to return to his previously law-abiding life with the support of his family.

19. The only factor weighing against suspension is the seriousness of the offence to which the appellant had pleaded guilty. Ordinarily, the weight to be given to that factor would plainly tell against suspension. If the Recorder had been able to consider exercising the power to suspend and, after weighing the relevant considerations, had struck the balance in that way by passing a sentence of immediate custody, this court would not have interfered with the exercise of her judgment. But in the present case we have to consider the application of the guideline on the suspension of a custodial sentence for ourselves and as at the present date.

20. The appellant has now served the equivalent of a sentence of up to ten months. Accordingly, in all the circumstances of the case, we are just persuaded that the balance comes down in favour of suspension.

21. We therefore quash the sentence of 28 months' imprisonment and substitute a suspended sentence order of one year and ten months.

22. The appellant must comply with a rehabilitation activity requirement for up to five days, as directed by the Probation Service, and perform unpaid work for 100 hours. We fix the operational period as 18 months, and the supervision period as 12 months.

23. Accordingly, and to this extent only, the appeal is allowed. ____________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: [email protected] ______________________________