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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ross, R. v [2025] EWCA Crim 691 (15 May 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/691.html
Cite as: [2025] EWCA Crim 691

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Neutral Citation Number: [2025] EWCA Crim 691
CASE NO 20240918

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
HHJ BRANDON Ind No: T20237027

Royal Courts of Justice
Strand
London
WC2A 2LL
15 May 2025

B e f o r e :

LORD JUSTICE STUART-SMITH
MR JUSTICE GOOSE
MRS JUSTICE EADY DBE

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REX

- v -

ANTHONY ROSS

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Computer Aided Transcript of Epiq Europe Ltd,
Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE
Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

____________________

MR A DI FRANCESCO appeared on behalf of the Appellant
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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    MRS JUSTICE EADY:

    Introduction

  1. With the leave of the single judge (who also granted an extension of time of three days), the appellant appeals against sentence.
  2. On 16 June 2023 in the Crown Court at Liverpool the appellant changed his plea to guilty to three counts (counts 2, 3 and 4) of conspiracy to supply a controlled drug, class B. On 20 December 2023 the appellant changed his plea to guilty to a charge of conspiracy to supply a drug, class A (count 1), and entered a plea of guilty to a charge of conspiracy to purchase or acquire prohibited weapons (count 6).
  3. On 9 February 2024, the appellant was sentenced to a total of 15 years' imprisonment; comprising eight years eight months' imprisonment on count 1, (with concurrent sentences of four years five months on count 2, and four years for each of counts 3 and 4) and a consecutive term of six years four months on count 6. A separate charge (count 5) of conspiracy to sell or transfer prohibited weapons was ordered to lie on the file on the usual terms.
  4. The facts

  5. The evidence underlying the offences in this case was derived from EncroChat material attributed to the appellant spanning a period from late March 2020 to early June 2020. Although the EncroChat evidence was only available for March to June 2020, the drug conspiracies were well-established and up and running by the time of the data capture period. On the data received, the police were able to attribute the EncroChat handles "diornote" and "easyjaguar" to the appellant.
  6. The appellant was acting as a commodity broker in drugs. The EncroChat messages showed he was involved in discussions relating to his latest cannabis grow and how it would produce up to 25 kilos of cannabis and he discussed the set-up costs of £8,500. In early April he was seeking to purchase half a kilo of heroin and later that month he was being asked to sell a kilo of heroin. He, as "diornote", was in discussions to purchase and supply a total of 58 kilos of amphetamine in April and, as "easyjaguar", another 6.5 kilos in June, along with 56 kilos of cannabis. Interpretation of the EncroChat messages by expert Merseyside police officers and a prosecution drugs expert gave an indication of the amount of drugs involved in the conspiracies and concluded that: count 1 related to one-and-a-half kilograms of diamorphine (or heroin) and the class B drugs involved in the conspiracies in counts 2 to 4 totalled 64.5 kilos of amphetamine and 56 kilos of cannabis.
  7. With regard to count 6, conspiracy to acquire firearms, a firearms expert interpreted the phraseology in the EncroChat data in March 2020 between the appellant (as "diornote") and another EncroChat user known as "mediumrose" as referring to a large, high powered automatic firearm being offered for sale for £13,000 with 50 rounds of ammunition, which was consistent with a price for an automatic weapon of that type with that amount of ammunition. Subsequently, in May 2020, further exchange between "mediumrose" and "diornote" was interpreted by the firearms expert officer as "mediumrose" seeking to obtain an automatic firearm, examples of which were Mac10s, Scorpions and types of AKs; in particular "diornote" referring to "the ak thing", which was consistent with him making a reference to a Kalashnikov type of firearm, also known as an AK. This would fire rounds of ammunition in very quick succession, which was consistent with the term "sprayer", which was also used in the EncroChat messages. From the appellant's plea to count 6, it was accepted by the prosecution that he was seeking to purchase or acquire the automatic firearms in question, not to sell or transfer them.
  8. The materials before the sentencing court

  9. The appellant was aged 34 at sentence and had 16 convictions for 23 offences spanning from 2011 to 2022, which included a number of convictions for possession of class A and B drugs, a conviction for possession with intent to supply a class A drug and a conviction for producing class B drugs. Most recently, on 11 February 2022, the appellant was sentenced (by HHJ Trevor-Jones) to three years and three months' imprisonment for being concerned in production by another of class B drugs. This had related to the operation of a cannabis factory in which the appellant had played a significant role.
  10. The court also had before it a psychological report and an intermediary report, the prosecution's opening note for sentence and the defence sentencing note. It also had character references from the appellant's mother and a former employer, and submissions in mitigation were made by Mr Di Francesco, who also appears for the appellant, pursuant to a representation order, today.
  11. Sentence

  12. In respect of the appellant's pleas on counts 2 to 4, the judge allowed that he should receive 20% credit; in respect of the later pleas on counts 1 and 6, she considered the appropriate reduction should be one of 15%.
  13. The judge referred to the sentencing guidelines and relevant authorities. She took into account that "the fact of operating within a conspiracy is in itself an aggravating factor and in conspiracies over a considerable period of time the quantity of drugs which can be shown or estimated to have been supplied would be less of a yardstick of the relevant harm than it would be for a single offence ... A sentencing court in such cases will have to make a fair but realistic assessment of the overall scale of the conspiracy's actual and intended operations."
  14. The judge noted that conspiracies brought to an end by a police operation (as here) would generally have been intended to go into the future; pursuant to section 63 of the Sentencing Act 2020, she was required to take into account not only the harm that was caused but also that which it was intended to cause or might foreseeably have been caused.
  15. In undertaking the sentencing exercise in this case, the judge noted that she was required "to assess the length of time you were involved, the quantity of drugs, where you are in the supply chain, the fact that three separate types of drugs, Class A and B, are involved and the additional features ... of your intention to obtain two firearms". She further made clear: "The court must also apply the totality guideline to ensure that all of your offending behaviour is reflected, but at the same time ensuring your sentence is just and proportionate in all the circumstances", expressly noting that she kept in mind that the appellant had been serving a custodial sentence (that is that passed on 11 February 2022).
  16. The judge took the view that the seriousness of these offences was aggravated by the appellant's previous convictions for related offending, although she accepted that he had no previous convictions for firearms and a limited history for violence. She expressly took into account the reports and character references relating to the appellant and all that had been said in personal mitigation. She further referred to the fact that there had been some delay in bringing these matters to conclusion, albeit she saw that was largely in consequence of the appellant's decision to maintain his not guilty pleas.
  17. In respect of the drug offences, it was accepted on the appellant's behalf that he had played a significant role and no issue is taken with the starting points adopted by the judge in respect of counts 1 to 4 or the manner in which the relevant sentencing guidelines for drug offences were interpreted and applied. Treating count 1 as the lead offence, the judge imposed a sentence of 10 years, reduced to eight years eight months after credit for plea. For count 2, the sentence was one of six-and-a-half years, reduced to four years five months concurrent, and for counts 3 and 4, sentences were imposed of five years, reduced to four years for plea (each also concurrent).
  18. As for the firearms, it was agreed that two type 1 weapons were involved and the judge found the appellant's culpability was high (category A). In respect of harm, it was submitted on behalf of the appellant that, as neither weapon was ultimately obtained, this was an inchoate offence - a relevant factor placing this offending within category 3. The judge rejected that submission, noting that section 63 of the Sentencing Act 2020 makes clear that harm is to be assessed by reference to the risk of harm or disorder. Satisfied that nobody but a criminal would want such weapons and ammunition, and there could be no reason to have these other than to cause a high risk of serious harm or distress or a high risk of death or serious physical or psychological harm, the judge found this was a category 1 case, with a starting point of eight years and a range of seven to 10 years. The judge considered that the seriousness of this offending was further aggravated by the sophisticated technologies used to avoid or impede detection and the fact that the appellant had been on licence at the time (in respect of offences committed in 2019).
  19. If sentencing for count 6 alone, the judge considered this would have warranted a sentence of eight-and-a-half years, reduced to seven years three months for credit. Making, however, a further reduction for totality, that sentence was further reduced to six years four months to be served consecutively to the sentence imposed for count 1.
  20. The appeal and the appellant's submissions; analysis and conclusions

  21. By his first ground of appeal, the appellant points out that although the judge had stated that he would be afforded a 15% reduction for his pleas in respect of both counts 1 and 6, in fact the periods deducted were less than this. In relation to count 1, that made a difference of two months; for count 6 the difference was somewhat smaller, two weeks. Those errors, it is said, also impacted on the notional adjustment for totality.
  22. Accepting that slight errors were made in the calculations, we do not accept that these went further than the (relatively) minor discrepancies identified: two months for count 1; two weeks for count 6. The further reduction for totality, expressly applied to count 6, was made after the reductions for the appellant's guilty pleas, the judge standing back and forming an overall picture of the appropriate sentence, having regard to the entirety of the appellant's offending behaviour. The judge's conclusion as to the appropriate term was not informed by a mechanistic application of percentage reductions but by her assessment of what was a just and proportionate sentence having regard to all the relevant circumstances of this case. The question for us is whether the sentence imposed was wrong in principle or led to a term that was manifestly excessive.
  23. By the second ground of appeal, it is the appellant's contention that the judge adopted too high a starting point in respect of count 6, wrongly finding that harm in this case was to be assessed as high. The appellant submits that, because the offence was inchoate and he never in fact came into possession of the firearms, a lower level of harm was appropriate. It is pointed out that the firearm guideline distinguishes "harm" from the "type of weapon" and the culpability associated with "an intention for the firearm to be used for a criminal purpose. The appellant says that, in a case of conspiracy to possess a firearm which is not ultimately obtained, that was a valid distinction, relying in this regard on the decision of this court in R v Nurden [2022] EWCA Crim 913, which, on the facts of that case, held that a finding of category 3 harm was warranted in respect of counts of conspiracy to possess a firearm and ammunition with intent to endanger life and on a separate count of conspiracy to possess a prohibited weapon – the offence with which we are concerned, the reduced the categorization of harm from 1 to 2. Mr Di Francesco in his able submissions today relies on the logic of the reasoning in Nurden, which he contends acknowledged a distinction between "intended use" and those factors which would give rise to elevated "harm".
  24. In Nurden, in respect of the relevant count of conspiracy to possess a prohibited firearm (the offence with which we are concerned) this court considered the sentencing judge had erred in treating the offence as falling within category 1 harm, finding instead it was to be treated as a category 2 offence. In so finding, the court accepted that, within the guideline, the illustrative "relevant considerations" (the location of the offence and so on) indicated the type of situation which would elevate the risk of harm. In that case, other than the reasonable inference that the items in question were for criminal activity, the court found that there was no further evidence about their intended use or the timing of such.
  25. The present case is, however, different to that of Nurden. Unlike the defendants in Nurden (who were operating as couriers) the clear evidence before the judge in this case was that the appellant was playing a significant role in a sophisticated, large-scale drugs conspiracy, operating through EncroChat - indeed, that is what he was pleading guilty to in respect of counts 1 to 4 - and the judge was entitled to see the efforts to acquire two automatic weapons, along with 50 rounds of ammunition, in that context. Had the appellant's criminal activity not been interrupted by the investigation, there was clear evidence of risk. In our judgement, it was entirely open to the judge to find that the weapons and the ammunition were sought as part of, and in connection with, the wider criminality that existed in this case and that there was, therefore, a high risk that serious harm or distress, if not severe injury or death, would be caused.
  26. This case is, in our view, much closer to that of R v Alpergin and Findlay [2024] EWCA Crim 313, where it was accepted (see paragraph 23) that the sentencing judge had been entitled to conclude that the guns and ammunition in that case were held as part of, and in connection with, the overall criminality and, in the world of drug dealing gangs there was a high risk that severe injury or death would be caused.
  27. In evaluating risk, the examples provided in the guideline are plainly not exhaustive. Whilst we acknowledge that, as the appellant did not in fact acquire the weapons, it was not open to the judge to have regard to any actual circumstances in which they were used, the assessment she was required to undertake was as to the risk of harm or disorder, which would include that which was intended or which might foreseeably have been caused (section 23 Sentencing Act 2020). For essentially the same reasons as those identified in Alpergin, carrying out that assessment in the specific context of this appellant's offending, we do not consider the judge erred in seeing this as a case involving an elevated level of risk and as falling within category 1 harm under the relevant guideline.
  28. By his third ground of appeal the appellant argues that the judge erred in failing to have adequate regard for totality in the light of the time he had already spent in custody (that is. in relation to the 2022 sentence for the production of cannabis) at the time of sentence. He had been remanded into custody in October 2021 for the production offence, dealt with in February 2022, and had remained in custody up to the sentencing hearing on 9 February 2024. The appellant submits that the total uninterrupted period of custody was thus excessive.
  29. Moreover, by the fourth ground of appeal, the appellant contends that inadequate regard was had to the unjustified delay in charging him with these offences (from June 2020 when the EncroChat data was obtained, to February 2023 when he was charged). In a submission that potentially goes to both grounds, it is the appellant's case that, had all matters been dealt with on 11 February 2022 (which would have been possible if there had not been such a long delay in charging) a sentence of, in effect, 19 years and eight months would have been manifestly excessive.
  30. We acknowledge the delay before the appellant was charged, even allowing that there might have been a need for further investigation. And, as has been recognized in a number of cases (the appellant has referred us to R v AB and others [2021] EWCA Crim 1959 and R v Beattie-Milligan [2019] EWCA Crim 2367), this can give rise to an injustice, in particular where it places additional strain on a defendant and/or their family. As Mr Di Francesco fairly accepted in submissions, however, that is not inevitably the case; there has to be some evidence of adverse impact and there was no such evidence in this case. Moreover, even allowing that the appellant might have felt some apprehension prior to being charged with the instant offences, this has to be considered in context. The impact of any delay will always inevitably be case and fact-specific. We note at the time of this offending the appellant was on licence for offences for which he had been sentenced in 2019 and would have been aware that his involvement in further criminal activity was likely to mean he would be recalled in respect of that sentence in any event. It is also relevant that the appellant was interviewed in respect of the current offences in November 2022 when he responded, "no comment". Once charged, the further delays that thereafter occurred mainly resulted (as the judge observed) from the appellant's late pleas.
  31. We acknowledge, however, the appellant's further point that, had he been charged earlier, it might have been possible for all sentencing to have taken place together - the present offences being dealt with alongside the cannabis production charge, which, at the sentencing hearing in February 2022, resulted in a separate term of three years three months. This was a case where, in February 24, the appellant was being sentenced for matters that had occurred prior to the offence dealt with in February 2022. In such circumstances the totality guideline makes clear that the court then has a discretion whether to make further allowance to take into account the earlier sentence (whether or not that sentence has been served in full) and relevant considerations will include the similarity of the offences sentenced earlier to the instant offences and whether, if the earlier and instant sentences had been passed together as consecutive sentences, the overall sentence would have required downward adjustment to achieve a just and proportionate sentence.
  32. Had all matters been addressed together in February 2022 we do not consider that that separate offence (which we do not see as similar to the conspiracy being addressed in February 2024) would then have resulted in a concurrent term, albeit the total term of the consecutive sentences would have had to be viewed as a whole in light of the totality principle. That, of course, is something that was done at the hearing in February 2024 - the judge expressly making clear that she was taking into account that earlier custodial sentence. That is something that we consider she also had in mind when she then went on to make her further reduction at the end of the sentencing exercise, expressly having in mind the question of totality.
  33. Ultimately we consider the question at the heart of this appeal is straightforward. Bearing in mind the three year three month custodial term that had been passed in February 2022, and the time the appellant had then spent in custody, was it manifestly excessive to then impose a sentence of 15 years in respect of the appellant's significant role in a large-scale, established conspiracy to supply three different types of class A and class B drugs, along with his involvement in a conspiracy to purchase or acquire two automatic weapons (at least one being a large, high-powered automatic) and 50 rounds of ammunition?
  34. Putting the question in that way, in our judgement the answer is clear: that further sentence was severe but it was not manifestly excessive. Indeed, given the appellant's antecedents, the drug offences in this case might well have led to a higher overall sentence for counts 1 to 4; weighting count 1 to take into account the other drugs charges, it would have been open to the judge to impose a longer term in this respect. Further, as the judge's sentencing remarks make clear, absent consideration of totality the sentence on count 6 would have been longer.
  35. Taking all the circumstances into account, as we are satisfied the judge did, we consider that the judge arrived at a permissible sentence that did not err in principle but that addressed the entirety of the appellant's offending while respecting the principle of totality. We are satisfied that the sentence was not manifestly excessive and we therefore dismiss this appeal.

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