England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15th October 2008

1. MR JUSTICE McCOMBE: We have before us an appeal and applications in a case concerning conspiracy in the counties of Worcestershire, Leicestershire and Derbyshire, between late 2004 and late 2006, for the supply of Class A, Class B and Class C drugs.
2. We have so far heard only the application of the applicant, Hamilton, for permission to appeal against conviction. Other matters are to follow. But it is only with that matter with which the present judgment for the time being is concerned.
3. It is, however, helpful to set out, at this stage, the circumstances of the charges, the defendants who faced the trial or pleaded guilty and the sentences that were imposed for ease of exposition.
4. There were eight accused, three whose cases are before us and five others. The convictions, pleas and sentences which are our concern today came originally before His Honour Judge Geddes in the Crown Court at Worcester. On 2nd November 2006 at that court the appellant, Hetherington, pleaded guilty to counts 1 and 2 on the indictment, being conspiracy to supply Class A and B drugs respectively. On 3rd November 2007 the applicant, Hamilton, pleaded guilty to count 2, relating to Class B drugs. On 23rd October 2007 he was convicted by the jury on count 1, relating to Class A but was acquitted on count 3, relating to Class C. On the same day the applicant, Dakin, was also convicted on counts 1, 2 and 3 on the indictment.
5. On 7th December 2007 all relevant accused appeared before the learned judge for sentence. Hetherington was sentenced to 12 years' imprisonment on count 1 and 9 years' imprisonment to be served concurrently on count 2. That is a total sentence of 12 years. Hamilton was sentenced to 12 years' imprisonment on count 1 and to 9 years concurrent on count 2, again a total sentence of 12 years. Dakin was sentenced to 6 years' imprisonment on count 1, to 4 years on count 2 and 2 years on count 3, each to be served concurrently to the sentence on count 1, giving rise to a total sentence of 6 years' imprisonment.
6. Hetherington now appeals against sentence by leave of the single judge. Hamilton renews his applications for leave to appeal against conviction and sentence and Dakin renews his application for leave to appeal against sentence, following refusal of such leave in each case by the single judge.
7. There were five co-accused, as we have mentioned, who departed the Crown Court with the following results. A man called Poxon was discharged on counts 2 and 3. On 23rd October 2007 the jury failed to agree a verdict on count 1. Gareth Pincombe had pleaded guilty to count 2 and was convicted on counts 1 and 3. He was sentenced to 14 years' imprisonment on count 1, with an 8 year concurrent sentence on count 2 and 3 years concurrent on count 3. Timothy Sandford was discharged on count 3 and was convicted on counts 1 and 2. He received a sentence of 8 years' imprisonment on count 1 and a 5 year concurrent sentence on count 2. Manuel Rowlinson pleaded guilty to counts 1, 2 and 3 and was sentenced to 7 years' imprisonment on count 1 and to 5 years and 2 years concurrent on counts 2 and 3. Gemma Oldfield pleaded guilty to being concerned in the supply of Class A drugs and was sentenced to 2 years' imprisonment, while not guilty verdicts were entered under section 17 of the Criminal Justice 1967 on the three indicted counts 1, 2 and 3.
8. Applications for leave to appeal against sentence by Pincombe and Sandford were refused and have lapsed in the absence of renewal.
9. The background facts and allegations were as follows. The conspiracy, as we have said, involved the supply of drugs in the counties of Worcestershire, Derbyshire and Leicestershire. The Crown's case was that Hetherington was the principal organiser of the enterprise in Worcestershire, whereas Pincombe fulfilled the same role in Derbyshire and Leicestershire. Each operated at the times as sole traders but with overlaps of offending between the two. Rowlinson was a "trusted lieutenant" of Pincombe in the latter's part of the business, and Hamilton was said by the Crown to be a principal supplier. Dakin was the owner of a house in Ashby de la Zouch which was used as a storage and distribution facility for cash and for all three classes of drugs at the instigation of his friend, Rowlinson. He also acted at times as a distributor of drugs in his own right. At that property the police found digital scales bearing traces of cocaine, dealers list and drugs with a street value of £65,000.
10. The conspiracy was uncovered by a surveillance operation carried on about hundred occasions, when a number of the accused were sighted together, between November 2004 and May 2006, at various locations in the areas we have mentioned including pubs, car parks and lay-bys.
11. It is material now to set out in a little more detail the circumstances relating to Hamilton, who alone among the accused maintains a challenge to conviction and whose application for leave to appeal against that conviction we have now heard.
12. Hamilton's case was that he was only concerned with the supply of Class B drugs and not drugs of Class A or Class C. The first sighting of Hamilton during the surveillance operation was on 14th November 2005. He was observed again in the company of one or more of the other accused on seven further occasions, between November 2005 and May 2006. On the last of these occasions, 5th May 2006, he was arrested in the act of delivering some 707 grams of amphetamine to others at a location in Leicestershire.
13. The Crown also relied upon a significant number of telephone contacts between Hamilton and Pincombe: between January and May 2006 he had on average 60 calls out in the day, including calls to the co-accused. Information for the period October 2005 to May 2006 revealed 440 calls from Hamilton to Hetherington and 334 calls from Hetherington to Hamilton. There were also 512 calls to Pincombe and 303 calls from him. That was, the judge in summing-up, thought to be an average of more than ten such calls a day, and the calculation it seems to us to be broadly accurate.
14. The Crown also relied on a substantial unexplained income on the part of Hamilton in the relevant period of some £74,000 against a declared for tax purposes of only £4,700. There was one specific transaction in July 2005, when he was shown to have paid cash of about £30,000 for a car.
15. On Hamilton's arrest his home was searched and small amounts of cocaine and one ecstasy tablet, admitted to be consistent with personal use, were found, together with three knives all bearing traces of cocaine when analysed. No dealer lists or other paraphernalia were, found on the search of that property. In interview Hamilton declined to answer the questions put and he did not give evidence in his defence.
16. The Crown alleged that Hamilton's regular contacts with other defendants throughout the period mentioned were inconsistent with the supply of merely one of the classes of drugs with which this significant enterprise was concerned and his involvement must have been deeper than he was prepared to acknowledge.
17. On the renewed application for leave to appeal against conviction, it is argued by Mr Smith QC that the learned judge wrongly rejected a submission of no case to answer on counts 1 and 3, made by him at the close of the Crown's case, (or at least very close to the end of the Crown's case) and that the learned judge failed adequately to sum-up the defence case in his summing-up to the jury.
18. In the written grounds of appeal it was also argued that the verdicts on counts 1 and 3 are inconsistent with one with the other, but that point has not been pursued in oral argument.
19. On the first point, it is submitted that the evidence against Hamilton on the disputed counts was purely circumstantial. There was no direct evidence of involvement with Class A or Class C drugs and that the facts were equally consistent with Mr Hamilton being merely a supplier of Class B drugs as he had admitted by his plea to count 2. It was pointed out on arrest on 5th May 2006 that he had with him Class B drugs only and it is argued, as a matter of law, that the Crown could only rely on an inference, if the relevant inference was the only reasonable one to be drawn from the primary facts proved. It must, it is argued, be conclusive at that stage or a compelling inference that no reasonable person could fail to draw. We were referred in written argument and in the grounds of appeal to the cases of Teper v The Crown [1952] AC 481, at pages 489-491; R v O'Brien [1974] 59 Cr App R(S) 22, at page 225 and Kwan Ping Bong v The Crown [1979] AC 609, at page 615. The case of R v Jabber [2006] EWCA Crim 269 was not referred to in the grounds of appeal but in refusing leave the learned judge referred to that case.
20. In our judgment, as stated by Moses LJ in giving the judgment of the court in Jabber, after considering the case of Kwan Ping Bong, the proper test to be applied in cases where the Crown relies upon the drawing of inference from primary facts is simply whether a reasonable jury, properly directed, would be entitled to draw that inference (see Archbold Criminal Pleading Evidence and Practice 2008 paragraph 4 - 295 and Blackstone's Criminal Practice 2008 D15.62, where the law is, we consider, correctly stated). In addition to the case of Jabber the same principle has been stated by this court in R v Edwards [2004] EWCA Crim 2102, at paragraph 84 and was followed in R v Bokkum (7th March 2000, at paragraph 32 per Tuckey LJ), the relevant passage being cited in Blackstone's text book to which we have already referred. The principle is no different from the well-known test emerging from Galbraith (1981) 73 Cr App R 124 and we have no reason to consider that the test should be any different in these particular circumstances.
21. It seems to us that the evidence taken as a whole at the end of the Crown case was sufficient to permit a jury to infer that Hamilton was a participant in the conspiracy as a whole, irrespective of the fact that on arrest he was found to be in possession of amphetamine only. The business of the conspiracy was for the supply of all three classes of drugs. Hamilton was in very regular contact with the other defendants both in person and by telephone. Even if his most obvious participation was in relation to Class B drugs, which were found on him on arrest, it was open to the jury on our view, on the evidence that we have summarised, to be sure that his involvement concerned the business as a whole. Equally the financial evidence could support the case on count 1 in so far as it implied involvement with drugs on many more occasions than a single one. There was in this sense a case to answer.
22. We turn to the question of the learned judge's directions to the jury in Hamilton's case. The judge reminded the jury of the basis of the defence case, namely that he was a supplier of Class B drugs only (see pages 20A to 20H of the summing-up transcript). This was, in essence, no more than counsel's submission, based on three aspects of the case to which we have referred, namely that the count referring to count A referred to ecstasy, LSD and cocaine, and the ecstasy tablet found at the applicant's home was different in composition from any found at the safehouse kept by the conspirators. The only evidence in relation to LSD was the seizure of a quantity of that drug on 1st February 2005 involving the co-accused Oldfield, at a time prior to the first demonstrated contact, in November 2005, between Hamilton and the other conspirators. Thirdly, so far as the cocaine was concerned, the quantity found on the knives was only capable of discovery by scientific examination and that the quantity of other cocaine found at the premises was of a different purity from that which was discovered at the safehouse.
23. As we say, counsel's submissions made to the jury was that the jury were entitled to think, or infer that Hamilton may only have been involved in the conspiracy so far as the Class B was concerned, because of the features that counsel placed before the jury and which we have just summarised.
24. There was no evidence from Hamilton himself on the point. In our judgment also, there is generally no obligation on a judge to remind the jury of the particular points of speculation, beyond that founded on evidence, that the jury has been invited to adopt as possible explanations for a defendant's involvement in a conspiracy. As it is put in Archbold, relying upon the case of R v Hillier and Farrar (1993) 97 Cr App R 349:

"It is no part of the judge's duty to build up the defence of someone who has not given evidence, although he should remind the jury in summary form of what the defendant said about the matter prior to trial."

See paragraph 7 - 65 of the current edition of the text book. The judge did just that. In this case this applicant had not said anything material to advance a defence prior to trial.

25. We consider that the judge might have been better advised to refer expressly to some of the points advanced by the defence counsel for Hamilton, in his speech, but we do not consider that his summing-up was defective for the reasons advanced and we would note that counsel took no step to say to the judge that the summing-up was in any way unbalanced because of the failure to refer to those points, as no doubt experienced counsel would have done if any such lack of balance was clear. We therefore consider that the conviction on count 1 is safe, and we need say no more about the argument as to the alleged inconsistency of verdict. This renewed application for leave to appeal against conviction is accordingly refused.
(Submissions re: sentence)
26. MR JUSTICE McCOMBE: My Lord, Dyson LJ, invites me to deliver the judgment of the court on the sentence application and the appeal.
27. The facts of the case and the circumstances of the convictions, pleas of guilty and sentences passed appear from the judgment that we have already delivered this morning on the application by the applicant, Hamilton, for leave to appeal against conviction. We do not repeat those facts.
28. On the sentencing applications and appeal, we take the case of Hetherington first. He is 33 years old and was of previous good character, not just in the sense of an absence of previous convictions but it was shown, and accepted by the judge, that he had led a constructive and promising early life. He was, however, at the forefront of this conspiracy in his area. He had, since apprehension, shown great remorse for what he had done which arose originally out of his own involvement as a user of drugs. He had also made significant progress as revealed by the reports produced while in custody.
29. In sentencing Hetherington the learned judge stated initially that he regarded the appropriate starting point on the basis of a not guilty plea and conviction after trial would have been 20 years' imprisonment. He then passed a sentence of 14 years, giving credit for the pleas of guilty at a very early stage. He proceed to deal with the other defendants. In the course of their mitigation he was referred to certain authorities which led him to pass a sentence of 14 years on Pincombe, the other prime mover in the conspiracy, who had contested the trial. Counsel for Hetherington then re-addressed the judge and he was persuaded to reduce the sentence passed on Hetherington to one of 12 years on count 1 on the basis of a starting point after trial of 15 years.
30. On the present appeal it is argued on Hetherington's behalf that, even if the judge's second starting point was correct, a discount of one-third for the guilty plea at the first opportunity would have resulted in a sentence of 10 years on count 1 less the time spent in custody on remand. Secondly, it is submitted that there was no reason to adopt a higher starting point for this appellant than for Pincombe, who was sentenced to 14 years on count 1. On that basis a reduction of one-third would have resulted in a sentence of 9 years after remand time. It is also submitted that Hetherington was deserving of further deduction of sentence because of personal mitigation applying in his case. Further, the argument proceeds, if a parallel was drawn with Hamilton, the reduction called for would, be even greater resulting in an 8 year sentence on count 1.
31. We consider that the first two of these points are made out. We take the view that there was inadequate reduction in sentence for the guilty pleas and that this appellant should have been treated in essentially the same way as Pincombe, ie with a starting of 14 years as the appropriate starting point after a trial. The result would be a sentence of 9 years on count 1, including a suitable reduction for personal mitigation, and 7 years on count 2.
32. In Hetherington's case, therefore, we allow the appeal and substitute a sentence of 9 years' imprisonment on count 1 for the 12 years passed in the Crown Court. The concurrent sentence of 9 years on count 2 will be reduced to 7 years, giving rise to a total sentence of 9 years' imprisonment in place of the 12 years imposed below. The time spent in custody on remand will count towards sentence as ordered by the judge.
33. We turn to the case of Hamilton. He is 39 years old. He had a number of previous convictions but only one for a drugs offence and that one offence was possession of a Class A drug, for which he was fined. There was no pre-sentence report in his case. The learned judge did not set out in detail his findings as to Hamilton's position in the conspiracy at the point of passing sentence, save to say that he was a major supplier to the conspirators. However, he did say more in a general summary at the outset to which we shall return shortly.
34. In the written grounds of appeal three points were raised on Hamilton's behalf. It was submitted that insufficient attention was paid to guideline cases, including R v Aramah 76 Cr App R(S) 190 and later authorities. There was insufficient consideration of the length of Hamilton's involvement and there was insufficient credit given for the plea of guilty on count 2 at the first opportunity. In addition, Mr Smith, for Hamilton, this morning has submitted that he was essentially in the same position as counsel for Hetherington, in that he was taken by surprise at the course that the sentencing had taken. He had not been appraised of the submissions addressed by Pincombe's counsel, in particular to the case of Attorney-General's Reference Nos 90 and 91 of 1988 [2000] 1 Cr App R(S) 32.
35. The learned judge's findings as to the role of Hamilton is amplified at pages 3 and 4 of the summing-up transcript, where he is reported as saying this at G:

"For example, Hamilton in the 107 days made 6,503 calls. That is over 60 a day on average. 440 were made to Hetherington. He received 334 from Hetherington, 512 to Pincombe and 303 from Pincombe. I find Hamilton to have been a major supplier of Class A and B drugs in the conspiracy. I rank him in terms of culpability just below Pincombe and Hetherington."

From this, as the passage quoted just now illustrates, the judge found Hamilton to be a major supplier of two classes of drugs and he put him in the conspiracy in a position slightly lower than Pincombe and Hetherington.

36. The difficulty that we have found with the submission made in respect of the guideline cases is that the quantity of drugs dealt with over the relevant period was impossible to assess. Clearly more were involved than the amounts found at Dakin's house. The conspiracy had gone on for some time. At best, Hamilton was involved from late 2005 to mid 2006. His contacts, as we have mentioned, with Hetherington and Pincombe were numerous and frequent.
37. In our judgment, the judge's assessment of Hamilton's role as being slightly lower down the tree of Hetherington and Pincombe cannot be faulted and appropriate differentiation had to be made and was made between him and Pincombe. It seems to us, therefore, that there is no arguable case for interfering with the sentence passed. We do not consider that that is affected by the submission made this morning in relation to the Attorney-General's Reference. Certainly sentencing in the experience of the court, has increased for conspiracies of this type in the intervening period because of the prevalence of such crime and the evil that it causes. In addition, we consider that the learned judge's assessment of the role of Hamilton in this conspiracy was adequately reflected in the sentences when differentiated from the other participants.
38. We turn to Dakin's application. He is unrepresented on the renewed application. He is 55 years old and was of previous good character. He was assessed in the pre-sentence report as presenting a low risk of re-offending and was motivated, it was said, not to commit further offences. He had, prior to apprehension, responsibly been employed as a plumber and handyman.
39. The judges assessment of his role in the offences was as follows; at paragraph 4G to 5A of the sentencing transcript as follows:

"Dakin's role was different again. His role was to provide Rowlinson and Pincombe with a safe house in which drugs could be stored, but I also find that Dakin dealt in drugs, both Class A and Class B in his own right. The value of the drugs found by the police at Dakin's house exceeded £64,000, but I have no doubt that drugs to a far greater value had passed through that property before the house was raided."

He returned to his role when specifically dealing with Dakin at page 14F to H of the transcript:

"Having heard the evidence, I have no doubt whatsoever that you were very well aware, probably from the beginning but it does not matter very much, that Rowlinson, your friend, was taking advantage of you and storing substantial quantities of drugs in your house. You chose, at the very best, to turn a blind eye to that and, indeed, you went further than that. I am quite satisfied that after a while you started dealing in the drugs yourself, no doubt with Rowlinson's permission and no doubt taking a profit from doing that."

40. In the written grounds of appeal it is argued on Dakin's behalf that the sentence was excessive, in that the judge paid insufficient regard to his role in the conspiracy, his age and his previous good character. Reliance is placed on the guideline cases referred to in Hamilton's application which we have already cited. For the reasons we have already given, we have difficulty in applying those cases directly to the present matter. It is submitted that on Dakin's behalf, that a well-known starting point for street dealing in Class A drugs emerging from those cases, is 5 years. It is therefore argued, with reference to the factors already set out, that the sentence of 6 years was too long.
41. We do not agree. This conspiracy went well beyond "street dealing". The applicant allowed his house to be used for the products and proceeds of the business for a very substantial period. The property was also used as a distribution centre. He then started to deal in drugs himself. In such circumstances this case went far beyond street dealing. We cannot find that the sentences were arguably excessive and we refuse this renewed application also.