Gain, R. v [2025] EWCA Crim 1692 (12 December 2025)

Neutral Citation Number: [2025] EWCA Crim 1692 Case No 202503193/A3 IN THE COURT OF APPEAL (CRIMINAL DIVISION) ON APPEAL FROM THE CROWN COURT AT CHESTER MR RECORDER ERIC LAMB 07EZ0121321 Royal Courts of Justice Strand, London WC2A 2LL Tuesday, 2 December 2025 B e f o r e : LADY JUSTICE ANDREWS MRS JUSTICE THORNTON HER HONOUR JUDGE MORELAND (Sitting as a Judge of the CACD) ____________________ REX - v - STEVEN GAIN ____________________ Computer Aided Transcript of Epiq Europe Ltd, Lower Ground, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court) ____________________ MR J LEES appeared on behalf of the Appellant. ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © This Transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved. LADY JUSTICE ANDREWS: This is an appeal against concurrent sentences of 3 years 2 months' imprisonment which were imposed on the appellant by Mr Recorder Lamb in the Crown Court at Chester in respect of two counts of being concerned in the supply of Class A drugs (heroin and cocaine) between 25 January and 22 February 2021. The appellant pleaded guilty to those counts at a pre-trial review hearing, on a written basis which was accepted by the prosecution. The Recorder gave 20 per cent credit for plea, of which no complaint is made. That means that the notional sentence after trial was one of 4 years' imprisonment. Eight co-defendants were sentenced on the same occasion. Unfortunately, at the original sentencing hearing on 14 August 2025, the Recorder only pronounced sentence on count 4. At a slip rule hearing, on 7 October 2025, the Recorder rectified that error by passing a concurrent sentence of the same length on count 3. He said on that occasion that concurrent sentences were appropriate on counts 3 and 4, because those two counts were all part and parcel of the same criminal conspiracy. That approach properly reflected totality. It is contended by Mr Lees on behalf of the appellant that a total sentence of 4 years before credit was manifestly excessive, because the Recorder failed to take account of the mitigation afforded by the appellant's serious mental health conditions. The background can be shortly stated. This was a County lines case. The relevant line known as the "Scouse AJ line" was set up on 21 January 2021. As its name implies, it was operated and controlled from Merseyside. Heroin and cocaine were supplied in the Macclesfield area. The organised crime group operating this enterprise made use of what are known as "graft" phones, that is, phones used to advertise the availability of drugs using bulk or flare texts to the mobile numbers of known drug users in the area. Telephone, cell site and ANPR evidence showed that the line was controlled by the co-defendants, Michael Flynn and Lewis McCallum. They operated from Liverpool although from time to time they travelled to Macclesfield. A co-defendant, Mark Finnigan, had a van and provided transport for the group. He took his directions from Flynn. Another co-defendant, Martin Del-Frate, who was based in Macclesfield helped with dealing to users on the street. The appellant and two more co-defendants, Joe Tyrer and Anthony Proctor, were street dealers. For around a week before he was arrested, the appellant organised taxis for members of the group when that was required. On 2 February 2021, the graft phone travelled from Liverpool to Macclesfield. Finnigan's van also travelled to Macclesfield, as did Flynn and McCallum. After the graft phone reached Macclesfield, flare texts were sent to 251 numbers between 7.15 and 8.15 that night. At 12.05 am on 3 February 2021, a police officer on observation duties noticed a number of drug users were congregating in Victoria Park in Macclesfield. The appellant and Tyrer were seen to enter the park and were observed supplying the drug users. They had walked there from the appellant's address, to which they returned after their transactions. The appellant was then seen to emerge from the address again. He met up with a customer called Ben Davies. A drugs supply was observed. Davies and the appellant were arrested. Money and a wrap of heroin were seized from the appellant and three wraps of heroin and a single wrap of crack cocaine were seized from Davies. Police officers entered the address and arrested Tyrer. From the address, 24 wraps of heroin, eight wraps of crack cocaine, £451.10 in cash, a set of scales and a mobile phone were all recovered. The group continued its operations for some time after these arrests. The remaining co-defendants were arrested on later occasions. In interview following his arrest the appellant admitted that he was a drug user but denied that he was involved in dealing. He denied all knowledge of the drugs recovered from his address. He maintained those denials when he was re-arrested and re-interviewed on 21 November 2021. He pleaded guilty after the prosecution amended the indictment to include counts 3 and 4 as alternatives to counts of conspiracy to supply Class A drugs. The signed basis of plea reads as follows: "The defendant enters his guilty pleas on the basis that he was involved in street dealing on the day that he was arrested. In the week leading up to that he was not involved in street dealing but was lending some measure of support to the conspiracy by performing tasks such as booking taxis and the like." The appellant never explained what was encompassed in the expression "and the like" but it would seem to connote other tasks of an administrative nature. The appellant was aged 44 at sentence. He had eight convictions for 10 offences spanning from 1998 to 2015. Only one of those offences was a drugs offence, possession of a Class A drug, for which he received a fine. That dated back to 2009, although the domestic burglary offence in 2015 was apparently committed in order to pay off a drug debt. In the 4 years between his arrest and sentence he had stayed out of trouble and had taken steps to address his addiction. At the time of the original sentencing hearing the Recorder had a Sentencing Note from the prosecution which ascribed a significant role to the appellant, a document entitled "heads of mitigation" prepared by the appellant's counsel, which suggested that he played a lesser role , and a pre-sentence report which stated that at the time of his involvement in these matters the appellant was using around £50 of Class A drugs per day and that a dealer had given him the option to sell drugs to fund his habit. The probation officer described the appellant as "an easy target" but he also said that he sought to minimise his involvement. The author's assessment was that the appellant was willing to take a chance of not being caught, which was motivated by the extent of his "unaffordable drug addiction at the time". The Recorder also had a psychiatric report from a Dr Lavanya Sebastian which confirmed that the appellant had an established diagnosis of schizophrenia which is severe and resistant to treatment. He has had a number of in-patient admissions for his mental health and has been prescribed clozapine (a powerful antipsychotic) since 2019. He has also been diagnosed with alcohol dependent syndrome and opioid dependent syndrome. He has not always taken his medication when he should. During 2020 and 2021 he was experiencing psychotic symptoms including auditory hallucinations, a feeling that his actions were being controlled from external forces and a belief that seemingly ordinary events had a special personal meaning for him. The psychiatrist considered he would be vulnerable in prison. The appellant told the psychiatrist that at the time of his offending his drug use was "off the chart" and that he had stopped engaging with his family and had only sporadically taken his medication for around 2 weeks. This account was consistent with his mental health notes, which referred to the erratic nature with which he was taking his medication. Dr Sebastian considered that in interview he demonstrated a good level of insight into his mental illness. She said that she acknowledged he used alcohol and drugs as a coping mechanism. She did not directly suggest any causal link between his illness and his involvement in the index offences. In his original sentencing remarks, when considering the Definitive Sentencing Guidelines for offending of this nature, the Recorder correctly identified the harm level as level 3 because this was street dealing. He said that the appellant had an organisational and operational role although it was limited in duration. He referred to the pre-sentence report in which it was indicated that the appellant had been targeted by more senior dealers and that at the time of the offending he had been neglecting himself. With the help of his family, he had since been able to reduce his dependency on drink and drugs. The Recorder said that there were some indicators of a lesser role , which led to what he described as a "small downward adjustment in the starting point". There is no express reference in the sentencing remarks to the aggravating feature of his previous convictions or to other mitigating features such as the appellant's vulnerability in prison. It is to be inferred, therefore, that the Recorder considered that those aggravating and mitigating factors counterbalanced each other and that he adjusted the starting point in the guidelines for a significant role of 4 years 6 months downwards by 6 months to reflect the features of lesser role he had identified, in order to reach the notional sentence after trial. There is no reference to the psychiatrist's report in the sentencing remarks. Mr Lees submitted that there was nothing to indicate that any downward adjustment to the starting point was made in respect of the appellant's mental health nor to explain, if it was the case, why that was not done. He pointed out that the guidelines on the sentencing of offenders with mental disorders require a sentencer to make an initial assessment of culpability in accordance with any offence specific guidelines and then consider whether their culpability is reduced by reason of the disorder. It will only be reduced if there is a sufficient connection between the disorder and the offending behaviour. The sentencer is not bound to follow expert opinion, but the guidelines indicate that if that course is not followed the sentencer should explain their reasons for departing from that opinion. That structured approach was not followed in the present case. It plainly should have been. Whilst we have some sympathy with the Recorder in having to deal with eight defendants all playing different roles within a drugs conspiracy, some of whom were pleading to simple involvement rather than to the conspiracy itself, it was incumbent upon him to give some reasons for his thinking, if he decided that he was not going to treat the psychiatric evidence as giving rise to any mitigation. In his oral presentation this morning Mr Lees referred specifically to paragraph 7 of Dr Sebastian's report. This stated that the appellant's account of his psychotic symptoms, which were corroborated by his mental health notes and his father's observations, suggest the severe nature of his psychosis. The doctor goes on to describe the symptoms which were described to her as being present during 2020 and 2021. She then says this: "Research on schizophrenia has demonstrated cognitive problems in individuals with schizophrenia, including problems with attention, perception and executive functioning. In addition, the actual psychotic experiences can be distracting and overwhelming for individuals. Both the deficits and executive functioning and the active symptoms of psychosis can impair judgment and impact on decision making. The mental health notes describe periods in 2020 and 2021, when Mr Gain presented with symptoms of significant neglect and with active symptoms. There were concerns about his behaviour including the associates he was spending time with, his avoidance of family and debt issues. The limitations on face-to-face contact and frequency of contact with patients in 2020 relating to the Covid-19 pandemic may also have impacted on the intensity of support Mr Gain received during this period." That is a general description of how individuals who suffer from this illness can present on occasion. The problem is that there is nothing in Dr Sebastian's report which specifically addresses the question of whether the illness from which Mr Gain was suffering had anything to do with his responsibility for his offending behaviour. That is the very question that the sentencer was required to address. Mr Lees submitted that the Recorder should have placed the appellant within a lesser role in category 3 with a starting point of 3 years' custody and a range of 2 years to 4 years 6 months. He submitted this on two bases; firstly, on the basis that although there were limited operational aspects to his function, he was effectively a dealer and he should have been treated as a dealer. However, even if that was wrong, Mr Lees submitted that all the various mitigating features, including the mental health aspects, should have led the Recorder to reduce the appellant's culpability so as to ascribe to him a lesser role within the guidelines rather than a significant role. Mr Lees submitted that the Recorder should have then adjusted the starting point downwards to reflect a further reduction in culpability before affording credit for the guilty plea. We are not persuaded that a notional sentence after trial of 4 years for offending of this seriousness was manifestly excessive. It is within the range of sentences available for a single offence for someone playing a lesser role, and towards the bottom of the range for a single offence for somebody playing a significant role . Whilst it would undoubtedly have been better if the Recorder had made some express reference to the psychiatric report and to the guideline on mental disorders, as indeed he was obliged to do, the inference can be drawn that he did not consider that the appellant's culpability was significantly reduced (if it was reduced at all) by reason of his mental health difficulties. That is unsurprising. There is nothing in the psychiatric report to suggest that the appellant did not know that what he was doing or that the voices he was hearing were telling him what to do. The pre-sentence report suggests that although others in the group may have taken advantage of him to some extent, he chose to become involved. Therefore, there was no question of the Recorder having to state his reasons for disagreeing with an expert's opinion. The appellant's involvement in organised criminal activity went beyond street dealing into carrying out some operational activities for the group. That placed him within significant role. He must have had some awareness of the scale of the operation with which he had become involved. We therefore reject the submission that the appellant should have been treated as playing a lesser role in this offending. The Recorder was entitled to ascribe to him a significant role and then make a downward adjustment for the features of lesser role that he identified, which included his vulnerability and the fact that he was taken advantage of by others within the group. He also took into account the short duration of his involvement. However, even if it could be argued that the notional sentence after trial for one offence should have been reduced further, to somewhere in the region of 3 years 9 months, which is halfway towards the starting point for significant and lesser roles, the sentencer would then have been required to make an upward adjustment to take account of the fact that there were two counts involving the supply of different Class A drugs (albeit simultaneously). In the light of that, a sentence after trial of 4 years might be regarded as generous. For those reasons, we dismiss this appeal. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII