England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

		Royal Courts of Justice Strand, London, WC2A 2LL
		14 November 2003

Lord Justice Potter:

1. In the case of four offenders convicted on joint charges of conspiracy the Attorney General, pursuant to s.36 of the Criminal Justice Act 1988, applies for leave to refer their sentences to this court as having been unduly lenient.
2. The offenders are Clark Richard Davies aged 42, James Rowan aged 38, John Abbey aged 46 and Mohammed Hassan aged 42.
3. On 18 December 2002 the offenders were convicted of three offences of conspiracy to supply drugs. They were each accused of conspiring with each other, Martin Jackson and others unnamed, between 1 March 2001 and 17 November 2001 to supply 26.9 kilos of Cocaine (Count 1), 307,419 MDMA – Ecstasy tablets (Count 2) and 34.4 kilos of Amphetamine (Count 3). The weight of Cocaine, at 100% purity was 21.2 kilos and the weight of the MDMA at 100% purity was 23.46 kilos. The drugs the subject of all three conspiracy counts were imported in a single consignment, the street value of which was around £5 million.
4. Upon Counts 1 and 2, Hassan was sentenced to 14 years' imprisonment on each count concurrent, Rowan to 12 years' imprisonment on each count concurrent, and Davies and Abbey to 11 years' imprisonment on each count concurrent. On Count 3, each of the offenders received sentences of 8 years' imprisonment also concurrent.
5. In addition, Hassan pleaded guilty to a second indictment charging him with three counts: being in possession of a firearm ( a Walther PPK pistol) without a firearm certificate; being in possession of a silencer without a firearm certificate; and possession of ammunition (seven 9mm bullets) without a firearm certificate. For each of those offences he was sentenced to 2 years' imprisonment concurrent with each other but consecutive to his 14 year sentence, making a total of 16 years in all.
6. The sentencing judge was His Honour Judge Clarke QC, the Recorder of Liverpool, sitting at the Liverpool Crown Court.
7. In summary, the offenders were part of a highly professional organisation, in close contact with each other and others in this country and abroad over a period of months, which culminated in the importation of Class A and B drugs worth in the region of £5 million, intended for sale in the United Kingdom.
8. The facts of the case were as follows. On the evening of 16 November 2001 a Dutch registered lorry driven by one Dirk Riet arrived in England from Holland. He stopped for the night at Burtonwood Service Area near Warrington. Next morning, i.e. 17 November, he was met by a red Volvo car driven by Jackson in which Hassan and Rowan were passengers. The Volvo led the lorry to a yard in an industrial estate in Bootle. After a few minutes conversation with the other men, Jackson drove away. He remains at large.
9. Police who had been watching the men's movements moved in and arrested Hassan, Rowan and Riet. Concealed in large loading ramps on the bed of the lorry's trailer were the drugs to which we have already referred. There were in the trailer unit the specific tools needed to open up the loading ramps.
10. Earlier that morning Abbey and Davies had been observed to take a red Escort van to the yard, where they had left it unlocked, with the key in the ashtray, for the onward transport of the drugs. They had previously set up an apparently innocent business, Quayside Cleaning Services, through which they had obtained the use of the yard and access to the docks. Each of them was arrested later on the same day.
11. A police operation named Operation Dolphin had for some months been following the activities of Jackson and the four offenders. Over that period they had observed the team making preparations for the importation of the drugs. On 3 March 2001, Hassan and Rowan had met a man called 'Braaf' at Heathrow Airport, following his arrival from Holland. They went together to Knightsbridge and were in each other's company for just over an hour. At the end of that meeting Braaf took a plastic bag from the car. Later that day he changed £5,000 sterling into guilders before returning to Holland. On 15 May, Hassan and Rowan were in a vehicle stopped at Dover Ferry Terminal. In May and June police became aware of frequent meetings between Jackson and Abbey. At the end of June, Hassan was seen to meet Jackson. In July, Hassan and Rowan were seen together. Davies was seen to attend a meeting with Jackson and Hassan. The next day, £2,000 cash was paid into Hassan's bank account. Further meetings were observed in July.
12. On 13 August Jackson flew to Amsterdam. Before he left he telephoned first Abbey, and then a number in Columbia. The next day he returned, whereupon he telephoned Abbey, then a number in Holland, then Abbey again. On 16 August, Hassan and Rowan returned together from Amsterdam to Liverpool. On 22 August, Jackson had a meeting with Abbey and Davies.
13. On 9 September, Rowan's car left the United Kingdom with Hassan in it. The vehicle returned 12 hours later. There was then contact between Jackson, Rowan and Davies. On 19 September Jackson flew to Amsterdam. He returned on 24 September and was then in contact with Hassan, Davies and Rowan. On 26 September, a further £2,000 was paid into Hassan's bank account.
14. On 4 October there was an hour-long meeting between Jackson, Abbey, Davies and Rowan. On 19 October Jackson and Hassan met at Hassan's home, then visited Rowan and then Abbey. The next day Hassan made a number of telephone calls to Dutch numbers. He and Jackson then went to Holland through the Channel tunnel, Hassan remaining in Holland but Jackson returning to England. On 24 October Jackson met Abbey and Davies, then visited Rowan. The following day Abbey, Davies and Rowan met at Abbey's home.
15. On 28 October, Jackson flew to Amsterdam where he was met by Hassan. They returned together on 12 November. As stated above, the consignment of drugs arrived in England on 16 November and the offenders were arrested on 17 November.
16. The prosecution's case as to the role of each offender was as follows. Jackson was the central figure in the conspiracy. However, he was not tried with the offenders, being still at large.
17. Hassan was a central figure in the importation. He lived part of the time in Holland. Telephone records showed that he made three telephone calls to the number in Holland of the haulier who arranged for Dirk Riet to drive the lorry. In interview with the police he claimed to have been approached on the day to collect the drugs on behalf of a third party, whom he refused to name. His defence in the trial involved serious accusations of dishonesty and corruption against the police and prosecution.
18. Rowan was an important figure in the importation. He made a number of trips to Holland with Hassan. When his home was searched, police found books and literature on surveillance techniques and equipment, together with a multi-channel radio scanner, two sets of binoculars, and literature on heavy goods vehicles. In interview and in the trial he said nothing.
19. Abbey was an important figure in the organisation at the English end. He was closely involved with Jackson. He and Davies set up the business which obtained the use of the yard to which the drugs were delivered and left the van there on the morning of the delivery for the onward movement of the drugs. In interview and in his defence he denied any involvement in the conspiracy.
20. Davies was at the same level of participation as Abbey, being involved in the provision of the yard and the van on the morning of the delivery and having attended numerous meetings with his co-conspirators. Like Abbey, in interview and in his defence he claimed innocent involvement.
21. The following relevant information about the offenders was before the court. Hassan had 24 previous convictions, mostly for offences of dishonesty. However he had never received a sentence more severe than 3 months' imprisonment. He had not been convicted of any offence since 1990 and none of his earlier offences involved drugs.
22. Rowan had been convicted of 6 previous offences mostly of dishonesty. For the most serious, he had received a sentence of one month's imprisonment. He had no previous convictions for drugs offences.
23. Both Davies and Abbey were of previous good character.
24. The following aggravating features appear to have been present in the case of each offender. First, the conspiracies involved the importation for sale in the United Kingdom of very large quantities of Class A and Class B drugs with a street value of millions of pounds. Second, they involved a high degree of planning, organisation and sophistication in which all had played an important part. The mitigating features were, first, that none of the offenders had previous convictions for involvement in drugs and Davies and Abbey were of previous good character. Second, the most important figure in the conspiracies was Jackson who was not before the court. Each of the offenders had played a role subordinate to his.
25. In passing sentence, the judge found that Hassan had a central role in the importation. He was closest to Jackson and had played the most important role of the four offenders before the court. He found Rowan's involvement and his place in the sentencing structure to be below that of Hassan but "not far below". Finally, he found Abbey and Davies to have played parts which were one further step away from the organising of the conspiracy but he stated that nonetheless they had played crucial roles which, as between them, could not be distinguished so far as culpability was concerned. He noted their good character but said that they were intelligent men playing for high stakes.
26. It is amply apparent from his sentencing remarks that the judge, who was a judge highly experienced in trying and sentencing serious drugs cases over a number of years, conducted a careful sentencing exercise on the basis of those assessments.
27. Nonetheless, it is submitted for the Attorney General that the sentences were inadequate to reflect the seriousness of the offences or to deter others from becoming involved in the evil trade in Class A drugs. In this connection counsel has referred us to various authorities upon the levels of sentence appropriate to major drugs offences. In addition to the guideline cases of Aramah [1982] 4 Cr App R (S) 407 and Aranguren [1994] 16 Cr App R (S) 211, we have been referred to Satvir Singh 10 Cr App R (S) 402, Scamaronie [1992] 13 Cr App R (S) 702, Richardson [1994] 15 Cr App R (S) 876, Serdeiro [1996] 1 Cr App R (S) 251, DeFour [1996] 2 Cr App R (S) 106, Kaynak [1998] 2 Cr App R (S) 283, Kayar [1998] 2 Cr App R (S) 355 and Billson [2002] 2 Cr App R (S) 521.
28. Counsel has submitted that, following the observations of this court in Aramah, as elaborated in Aranguren, in relation to major cases of importation of Class A drugs, the starting point for consignments exceeding 5 kilos assessed by reference to 100% purity rather than total weight, is a sentence of 14 years and upwards following conviction. On that basis the courts generally apply a rising scale of penalty related to the excess of the consignment over the 5 kilos starting point, allowing a degree of variation related to the level of the particular offender's participation in the relevant conspiracy and/or importation. Thus in Kayar a sentence of 20 years' imprisonment imposed following trial was reduced to one of 16 years in respect of an offender who had organised the importation of a 10.3 kilo consignment of heroin. In DeFour a sentence of 25 years imposed following trial upon an offender involved as a 'prominent figure', though not the organiser, in the importation of two consignments of heroin of 10 kilos and 5.7 kilos respectively was reduced from 25 years' imprisonment to 20 years. In Billson, involving a consignment of 49 kilos at 100% purity the sentence upon the courier following his plea of guilty was reduced from 17 years to 14 on the basis that a sentence in the order of 20 years would have been appropriate upon conviction. Moving yet further up the scale, in Kaynak, a case involving 100 kilos of heroin at 100% purity, with a street value of £14 million, a sentence of 30 years imposed upon a high middle-ranking participant in the conspiracy following trial was reduced from 30 years to 24 years, the sentence upon a less important mid-ranker who had pleaded guilty being reduced from 20 to 15 years.
29. Upon the guidance afforded by those cases, counsel for the Attorney General has submitted, (rightly in our view) that, considering the importation counts in isolation and on the basis of no exceptional mitigating circumstances, sentences on counts 1 and 2 of 20 years for Hassan, 18 years for Rowan and 16 years for each of Abbey and Davies might have been expected. He acknowledges that the absence of Jackson as the central organising figure was a matter which the judge could properly take into account. However, he submits that in the case of Jackson, had he been before the court, a sentence of 25 years would have been appropriate.
30. In seeking to uphold the sentences, counsel for the offenders have acknowledged that the level of sentences imposed appear lenient by reference to the cases to which we have been referred. They have not sought to refer us to additional authorities which might alleviate the conclusions as to the level of sentence to be expected which counsel for the Attorney General has put forward. Essentially, their submission has been to the effect that this court should not readily disturb the decision of a highly respected and experienced judge, practised in dealing with serious drug cases, who must be presumed to have had in mind the guideline cases and to have had good reason to impose sentences more lenient than those which might otherwise have been expected.
31. We say at once that we acknowledge the force of those observations not only as a generality, but because of our respect for the high reputation and wide experience of this particular judge. It is plain that he conducted a careful sentencing exercise in relation to each individual defendant and his particular role in the conspiracy. It is also clear that he bore in mind that the central organising figure was absent and that any sentence imposed upon him, if brought before the court, would require to be appropriately higher than those whom he was sentencing. We also acknowledge that, although it is the case that in large scale drug importation cases a broad 'tariff' approach is appropriate in the absence of exceptional mitigating circumstances, a degree of flexibility must always remain in the hands of a judge who has presided over a long trial and is pre-eminently in a position to have the 'feel' of the case. Nonetheless, this is a field where the guideline cases have in general been followed as reference points for subsequent appeals to this court, and it is appropriate that they should generally be followed by trial judges at least to the extent that, if departed from to a substantial degree, the reasons for such departure should be made clear in the judge's sentencing remarks.
32. In this case, in the course of his careful sentencing remarks, the judge said nothing to identify any specific feature of the case or any factor operative in respect of a particular defendant which would render a substantial departure from the guidelines appropriate. Nor have counsel for the offenders been able to persuade us that such factor or feature existed.
33. We accept the submissions of the Attorney General as to the level of sentence which might have been expected, subject to any appropriate variation by a year or two. However, the lesser sentences passed introduced in this case seem to us to have extended beyond a mere matter of leniency and to amount to undue leniency in all the circumstances.
34. In the light of the element of double jeopardy which this court takes into account in references of this kind, we quash the sentences on Hassan of 14 years' imprisonment concurrent on Counts 1-2 and substitute sentences of 17 years concurrent on those Counts, leaving the 2-year sentences in respect of the firearms offences to run concurrently with each other but consecutively to the sentences of 17 years (i.e. 19 years in all); we quash the sentences of 12 years' imprisonment concurrent imposed upon Rowan and substitute sentences of 15 years' imprisonment concurrent; and we quash the sentences of 11 years' imprisonment concurrent imposed upon Abbey and Davies and substitute sentences of 13 years' imprisonment concurrent in each case.