England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		23rd May 2008

1. MR JUSTICE SAUNDERS: The two appellants were sentenced by HHJ Steiger QC on 26th November 2007 at Manchester Crown Court for an offence of conspiracy to supply class A drugs. Mr Coupe is 38 years of age. He has some convictions for possession of drugs but no previous convictions relating to the supply of drugs. Mr Spelman is 36 years old. He does have previous convictions relating to drugs but relatively minor, nothing approaching what was before the court on this occasion.
2. They had both previously pleaded guilty. Mr Spelman had pleaded guilty on 22nd June 2007, which was the first available opportunity so far as he was concerned, and in Mr Coupe's case on 19th September 2007. That was not the first available opportunity but it was only by that time that all the prosecution evidence had been served on Mr Coupe and he was perfectly entitled to wait until the evidence was served until he entered his plea. Mr Coupe was sentenced by the learned judge to 12 years' imprisonment and Mr Spelman to nine years.
3. There were other people involved in this conspiracy, some of whom were before the court, others who were not, including the one or two people at the top of the conspiracy who no doubt got the most benefit from it.
4. The basis of the conspiracy charge was observations kept by the police on these appellants, amongst others, from January 2007. They were seen in contact with each other, driving a number of vehicles around. It was later demonstrated that that they were in regular contact by mobile phone and they were clearly involved at that stage in what was later demonstrated to be drug dealing on a fairly substantial scale.
5. On 13th February 2007, the police, having kept their observations, decided to intervene. Mr Spelman was stopped while driving a Renault van. In that van was found five kilograms of cocaine. As is normal, that was not pure cocaine of 100 per cent purity but had to an extent been cut with other material. In his house was found a further two and-a-half kilograms of cocaine, again cut, and packaging which would have contained a further two and-a-half kilograms. It was demonstrated that cocaine of undetermined purity had been in the packaging. Mr Coupe was seen near Mr Spelman's house when the police were searching it. He was not, however, arrested, because he went away, until 21st February 2007. Mr Coupe, when interviewed by the police, produced a prepared statement which denied any involvement in drug dealing and gave no comment interviews and was released on bail. The police continued their observations. Mr Coupe clearly continued his activities as a drug dealer. On 5th April 2007, the police executed a search warrant at a co-defendant's house. Found there was the co-defendant and Mr Coupe in the act of cutting the cocaine with hay fever tablets which had previously been purchased. A quantity of cocaine was found there. There was £8,000 in money found in Mr Coupe's car and he had £1,000 on him. In all, in the searches of the appellant's house and others, and what was recovered from Mr Spelman, a total of 8.26 kilograms of cocaine was recovered by the police. In addition, there was the empty packaging, which would have contained some two and a half kilograms of cocaine.
6. The prosecution said that, at a purity of 100 per cent, there was over five kilograms of cocaine. The defence said that it was just under 5 kilograms at 100 per cent purity. No account was taken in those figures of the packaging, which would have contained some two and-a-half kilograms at an unknown purity.
7. From what I have already said, it is clear that that was dealing in class A drugs on a large scale. In deciding on the appropriate sentence, the judge had to decide whether it was appropriate to distinguish between the defendants as to their roles. He decided it was. There is no complaint about that. He also had to decide what credit to give for the pleas of guilty. Both appellants in this case argued that insufficient credit was given for the plea. As I have indicated, Mr Spelman pleaded at the earliest opportunity; Mr Coupe pleaded later, but he was waiting for full disclosure from the prosecution and the judge said that he was entitled to do so. However, the judge did decide that, because these two were caught red-handed, as indeed they were and there can be no argument about that, full credit of a third was not appropriate. The latest guideline issued by the Sentencing Guidelines Council as to the reduction in relation to pleas of guilty says this:

"5.3. Where the prosecution case is overwhelming, it may not be appropriate to give the full reduction that would otherwise be given. Whilst there is a presumption in favour of the full reduction being given where a plea has been indicated at the first reasonable opportunity, the fact that the prosecution case is overwhelming without relying on admissions from the defendant may be a reason justifying departure from the guideline.

5.4. Where a court is satisfied that a lower reduction should be given for this reason, a recommended reduction of 20% is likely to be appropriate where the guilty plea was indicated at the first reasonable opportunity."

8. The judge, as I have indicated, decided that it was not appropriate because they were caught red-handed, to give a full third deduction. In Mr Spelman's case, he gave rather more than the recommended reduction of the Sentencing Guidelines Council, he gave 25 per cent. That no doubt was because of the very early plea which was entered by Mr Spelman. In Mr Coupe's case, he gave 20 per cent. That is in line with the recommendation of reduction which should take place if the judge takes the view that full credit is not justified.
9. There is some complaint that counsel was not sufficiently forewarned that the judge might be reducing the amount of credit for the plea from what had become the normal one third, but in our judgment the discussions between counsel and the judge during mitigation that these two had been caught red-handed should have alerted counsel. It may be that people are simply insufficiently aware at the moment of the change in the guidelines and that one third will not automatically be given in cases such as this, where the evidence is overwhelming.
10. There is in our judgment nothing in that ground of appeal. The judge was entitled to do what he did. He was within the guidelines and this court cannot interfere in those circumstances.
11. Both appellants also complain that the judge took a starting point which was too high. The appropriate guidelines, which were first set out in Aramah but have since been amended, are helpfully set out in Archbold at 26-109. Those guidelines are as follows:

"Class 'A' Drugs...

Importation of heroin, morphine, etc,: Large scale importation, that is where the weight of the drugs at 100 per cent purity is of the order of 500 grammes or more, sentences of 10 years and upwards are appropriate. Where the weight at 100 per cent purity is of the order of five kilogrammes or more, sentences of 14 years and upwards are appropriate."

Although those are said to be the guidelines for importation, where supply is alleged on a considerable scale, as it was in this case, similar sentences are appropriate for supply as they are for importation.

12. There was some dispute at the sentencing hearing, which went on over two days, as to what the weight at a hundred per cent purity was. The prosecution do not appear to have carried out a detailed calculation of the weight of cocaine of a hundred per cent purity by the time the plea hearing started. There is no doubt that they should have done. It is important for the judge to know, and indeed for it to be agreed, before the sentence is handed down as to what the appropriate weight of drugs at a hundred per cent purity is. Over lunch of the first day of the plea, the prosecution appeared to have done the calculation. Their calculation was that it was just over five kilograms of cocaine in all at 100 per cent purity. The defence did not agree that figure and they said that it was, on their calculation, just under, but both figures in reality were around the five kilogram figure and took no account of the amount of cocaine which had been in the empty packaging which was found.
13. In the course of a discussion where the prosecution and defence were disagreeing about the amount, HHJ Steiger said this:

"Well, let me stop you there. I appreciate you may have been taken by surprise in the sense that this has been just explained this afternoon but in each of the recoveries the scientist concerned has identified a percentage purity. Now surely it is a mathematical exercise to work back from the weights analysed to discover what the precise figure was at 100 per cent."

Mr Harrison, who was appearing on behalf of Coupe, said:

"Well it is but I have arrived at my figures and I am not saying that I am perfect but the crown seem to be more or less ... with my suggestion, in fact I agreed with their initial suggestion, now we hear that it is recalculated at a different figure. My objection is that this should have been set out before this hearing began, [with which this court agrees] it is pretty obvious it is relevant and to come now after mitigation is just unacceptable in my submission."

HHJ Steiger then said:

"I propose to progress the problem in this way, that the weight recovered at 100 per cent purity was round about 5 kilos which is the 'Aramah' stepping stone as it were from 10 to 14 years but for my part I shall not regard the precise figure as being of crucial importance at all and if you want to have a calculation made and send it in later on this afternoon I will certainly give consideration to that. I was not in any event proposing to pass sentence this afternoon. I am not proposing to approach this case so far as the 'Aramah' step threshold is concerned on a minute gradation."

14. Now, that was understood by counsel, and we accept that is how they understood it, as meaning that the starting point that the judge was going to take was one of between ten to 14 years. If one looks at what the judge actually says he is not saying what counsel understood. He is saying it is round about five kilos, which is when it goes up from ten to 14 years and therefore in our judgment he was, on analysis properly saying that he would be taking a starting point of 14 years. He, of course, goes on later to say that one also has to take into account what had been in the empty packaging. It also has to be borne in mind that the judge was sentencing on the basis of a conspiracy alleging drug dealing activity going on over a period of several months. What the police recovered on their two raids was the stock in trade that for the conspirators had at the time and, although, of course, the judge cannot speculate as to the amounts that would have been there, drug dealing had been going on at an early stage.
15. In the case of Coupe, it is apparent from the calculation that the learned judge took a starting point of 15 years and in Spelman's case he took a starting point of 12 years. Was he entitled to take those starting points and was he correct to do so? Well, in our judgment he was. The sentences are of course severe, there can be no question of that, but the guidelines indicate that severe sentences must be imposed for offences such as this and in our judgment the sentences are in line with the Aramah guidelines. The discount which has been given is in line with the Sentencing Guidance Council guidelines and where a judge has, as this judge has, operated and sentenced completely within the guidelines, it is not possible for this court to interfere and accordingly the appeals are dismissed.