England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		13th February 2008

1. LORD JUSTICE THOMAS:
2. Introduction
3. On 31st October 2007 His Honour Judge John Samuels QC sitting as a deputy circuit judge sentenced a number of persons primarily for conspiracy to supply heroin. They were:

4. 1. Osman. He was 34 years of age. He pleaded guilty following a Goodyear indication given on 17th September 2007. On the basis of plea which was accepted by the Crown and accepted by the judge, he was sentenced as follows: count 1, conspiracy in 2006 to supply heroin, 13 years; count 2, conspiracy in 2001 to supply heroin, seven years; count 3, dangerous driving, a sentence of 18 months. The sentences for the conspiracy to supply heroin in 2001 and the dangerous driving were made concurrent to the sentences of 13 years, producing a total of 13 years in all.

5. 2. Catal. He had pleaded guilty to the 2006 conspiracy on 17th September 2007 following a Goodyear indication on the basis of plea accepted by the Crown and the judge. He was sentenced to eleven years imprisonment.

6. 3. Weight. He had been convicted on 4th October. He was sentenced to a term of five years' imprisonment for his involvement in the 2006 conspiracy.

7. HM Attorney General seeks leave to refer these sentences to this court as unduly lenient. We will grant leave in respect of Osman and Weight for reasons we shall give in due course.
8. On the same day Murat Olgundeniz was sentenced to 16 years' imprisonment for his involvement in the 2006 conspiracy. He had been on licence after serving his sentence after conviction for a conspiracy in 2001 to supply heroin, different to the conspiracy in which Osman had been involved. Despite that, the judge dealt with the issue relating to the commission of the offence whilst on licence by directing only that time on remand since 30th July 2007 was not to count.
9. He had pleaded guilty on 20th July 2007. A basis of plea had been mooted at that time, but it was not accepted by the Crown until 18th October. It is not at all clear from the information before this court, or from the assistance that we have been given by counsel, whether the judge expressly accepted that basis of plea or not. We shall deal with the whole problem of bases of pleas in this case in due course.
10. He appeals to this court on the basis that the sentence was manifestly excessive. His application has been referred by the Registrar to this court.
11. The facts
12. The facts, we think, can be stated as follows:

(a) 2001 conspiracy

13. The 2001 conspiracy concerned 20.57 kilogrammes at 100 per cent purity with a street value of £2.6 million. For these purposes it was only Osman who was involved in that. The details are set out with great clarity, if we may say so, in the reference, but can be summarised as follows:
14. (i) A person called Spelic arrived from Slovenia on 14th June 2001 and stayed at a pub in Maidstone. Osman drove a Peugeot car in which another conspirator, Mustafa, was the passenger to a takeaway near the public house. Osman then collected Spelic from the public house and Mustafa joined them for a meeting. On the following day Osman drove from London down to Kent. In Kent he got into a Volvo car and with another car, a Peugeot, they drove to Maidstone.
15. (ii) Spelic came out of the public house in Maidstone with a bag and got into the Peugeot. Other conspirators got out of the Peugeot and into the Volvo which was driven by Osman. Both vehicles drove to various locations. Then, when they were about to head back to London, they were intercepted by the police. Those that were in the Peugeot car were caught and the quantities of heroin to which we have referred were found. Osman, seeing what had happened, drove at very high speed and evaded capture. The conspirators other than Osman were tried and Mustafa and Spelic were given terms of 14 years.
16. (iii) The basis of plea that was agreed in relation to this conspiracy was set out in a document that was agreed, as we have said, on 17th September 2007. It was as follows.

"Osman accepted he had known Mustafa for eight years. The night before his arrest he had taken Mustafa to meet Spelic in Kent to speak about a parcel. At this point he did not know that the parcel was drugs and nothing was mentioned that evening by Mustafa. The next day, during the afternoon, Mustafa rang Osman and proposed a deal, that if Osman could take two friends of Mustafa's up to where he had taken Mustafa the night be, Maidstone, Kent, before he would be paid £1,500. Osman asked what he would be picking up and was told that the parcel contained drugs. Osman admits that he asked what type of drug he would be collecting and was told it would be heroin. Osman did not know, however, what quantity of heroin he would be handling. Osman was to be paid £1,500 for his services. Osman took the two men to Maidstone to collect the drugs. On the return journey, when they encountered the police, Osman fled the scene."

17. (iv) It was on the basis of that plea, agreed as it was by the Crown and accepted by the judge, that it is clear that Osman was sentenced.
18. (b) 2006 conspiracy
19. The 2006 conspiracy involves significant quantities of heroin brought from Turkey:
20. (i) The quantities involved were 14 kilogrammes at 100 per cent purity.
21. (ii) The prosecution case consisted of extensive observation evidence between 7th November 2006 and 24th December 2006. That observation evidence included an extensive number of telephone calls between those involved. Some were said to demonstrate links between Osman, Olgundeniz and Reis (the supplier in Turkey). There were a number of meetings and telephone calls, all of which were observed.
22. (iii) It is clear that all were involved in some way in the organisation and distribution of drugs.
23. (iv) These observations culminated in the arrest of Olgundeniz in Tottenham. He had been wheeling a suitcase containing 19 packages containing 18.98 kilogrammes at 48 per cent purity; others were at 55 per cent purity.
24. (v) Osman and Catal, when subsequently they realised he had been arrested, tried to recover other drugs from premises in Enfield rented by Olgundeniz. They were arrested as they tried to escape from the premises at which the police found further quantities of heroin.
25. The bases of plea made in relation to the 2006 conspiracy
26. There were bases of pleas to the 2006 conspiracy:
27. (i) Olgundeniz's basis of plea, which was accepted on 18th October, was in essence the following. He had been convicted in Wood Green Crown Court in April 2001 for an offence of conspiracy to supply heroin and he had been given ten years' imprisonment. He was released in January 2005. Shortly after his release he was contacted by three men who told him he owed money to the man we have referred to as Reis as a result of losing the drugs in 2001. Threats were made against him and his family, but it was accepted that those did not give rise to the defence of duress. Olgundeniz was instructed to attend a shop at which the police observations had been made. At this stage he met Osman. He denied making threats against Osman and Catal; they were giving him orders. He was instructed by Osman to attend estate agents about the premises at which the drugs were found by the police on 24th December. On 20th December he was instructed to meet another man, not a named conspirator. He initially refused to take a package but further threats were made against him. He accepted the bag which was collected. It was while moving that bag around that he was arrested.
28. (ii) Osman's basis of plea, which had been accepted earlier by the Crown, was as follows. His case was that he owed money to Olgundeniz and his associates. That debt had come about because Osman had borrowed money for a car business that had gone wrong. Following his inability to meet the agreed repayment conditions, substantial interest began to accrue. Osman was making payments to Olgundeniz in 2001 until Olgundeniz was imprisoned. When Olgundeniz was released Osman had not made any payments for four years. Olgundeniz then located Osman and insisted on immediate repayment. Osman was pressurised to repay the money at a time when he was unable to do so. Olgundeniz introduced Osman to another person who demanded £55,000 in settlement. Osman was unable to meet the demands and in consequence the alternative was suggested to Osman that he would work off the debt by carrying drugs and money for them. He agreed to do so. When he was arrested, Osman knew he was to collect a large quantity of heroin from the address but did not know how much. He accepted that he voluntarily became involved with people associated with drug dealing to pay off his debt. He knew that Olgundeniz was involved in drug dealing. He took his instructions from Olgundeniz and the other person to the conspiracy. Osman's role in the conspiracy was to collect and deliver drugs and/or money on behalf of the organisation to reduce his debt. He did not have any involvement with the drug traffickers in Turkey and was not privy to the process by which drugs were brought into the United Kingdom and did not know anything about the business arrangements in place for their onward delivery. The telephone contact with Turkey was indicative of arrangements to import heroin made by Olgundeniz. It was asserted that it was axiomatic that Olgundeniz would have supervised the onward movement of drugs once they arrived in the United Kingdom. After setting out more of his case against Olgundeniz, Osman continued in his basis of plea to say that his involvement was limited; he accepted responsibility for the intended transfer of drugs found in his possession on his arrest.
29. The third person involved, Catal, put forward a basis of plea that was essentially very similar to that of Osman, namely that he owed money to Olgundeniz and had been brought into the conspiracy for the purpose of discharging that debt. He accepted he was involved in criminal activity which encompassed the distribution of class A drugs, that he acted under the command of Olgundeniz in respect of the acts that he did in furtherance of the conspiracy. He said he received no financial benefit, save the notional reduction of the debt to Olgundeniz.
30. The difficulties created by the irreconcilable bases of plea
31. It is readily apparent from what we have said that there was a fundamental and irreconcilable difference between the basis of plea of Catal and Osman and that of Olgundeniz.
32. We would observe that it is very important that those who deal with bases of plea have at the forefront of their mind the guidance of Sir Igor Judge in Underwood [2004] EWCA Crim 2256, also reported at [2005] 1 Cr App R (S) 90.
33. That guidance ought to be read each time in a heavy case of this kind when the process of agreeing a basis of plea is being contemplated. The position into which the court was put in this case was that the bases of plea agreed with Osman and Catal were made without any proper consideration of the position of Olgundeniz.
34. It was accepted before us that Olgundeniz should have been present through his counsel when the bases of pleas for Catal and Osman were discussed on 13th and 17th September 2007. It is, we think, important to stress that a share of the responsibility for what went wrong in this case must plainly rest with the Chief Crown prosecutor and with the senior counsel for the prosecution in not clearly thinking through what they were doing when agreeing the bases of plea.
35. The need for careful consideration by the Crown of the bases of plea
36. We have helpfully been shown by Miss Johnson, who has appeared on behalf of the Attorney today, a document produced by the Crown that disputed parts of the bases of plea. It is clear, it seems to us, that a great deal more thought ought to have been given to what it was that the Crown wished to assert in respect of the roles of all of those involved. It is, we would venture to say, unsatisfactory for this court to be faced with an application for a reference where the origin of the problem has been in the acceptance of the bases of plea. For example, the Crown were prepared, when looking at the request for a basis of plea in respect of Catal, to say that Catal and Olgundeniz were at the same level. It is at that stage that real concentration should have been given to the levels in the hierarchy of the 2006 conspiracy.
37. Furthermore, when examining the words chosen for the basis of plea, it is important for considerable precision to be used so that there is no dispute thereafter as to the level at which each person concerned is said to have operated. What was said in the basis of plea, for example in respect of Osman, is that his role was to collect and deliver drugs, in effect to act in the role of a courier. When it is sought to be argued in this court that that really was not his role, it seems to us impossible for such a contention to be made as matters had proceeded in the Crown Court on what was set out in the basis of plea as a result of the Crown's and the judge's acceptance of that basis of plea.
38. We trust in the future that in these cases, involving very serious conspiracies with very significant periods of imprisonment to be served, great attention will be paid to ensuring any bases of plea are consistent with each other and contain with precision the basis on which the court is to be asked to sentence.
39. The issues
40. Having made those observations, we return to consider the further issues that arise in this case.
41. (i) Timing of the pleas
42. First, the judge proceeded to deal with the credit to be given to Osman and Catal on the basis that they had pleaded guilty and their bases of plea were made on 20th July 2007 when Olgundeniz made his plea of guilty. In fact on 20th July, Osman and Catal had pleaded not guilty on rearraignment on a consolidated indictment. It appears that on that day there was an unusual amount of rain in London and the cells at the Kingston Crown Court became flooded; as it was put by his counsel to the judge, Osman was "carted off" without an opportunity for proper discussion. They only pleaded guilty on 17 September 2007.
43. It seems to us that in those quite exceptional circumstances the judge was within that area of judgment open to him, though possibly erring on the side of generosity, to treat the plea as having been made earlier. However, that is a wholly exceptional circumstance and the normal consequence is that if someone pleads not guilty and even some weeks thereafter seeks a basis of plea, or a Goodyear indication, then he has not pleaded guilty on the first available opportunity. This is a wholly exceptional case, where there were quite extraordinary circumstances and forms no precedent whatsoever.
44. (ii) The aggravating features
45. In the reference the Attorney seeks to persuade us that there were aggravating features that the judge did not properly take into account. Both of the conspiracies were well-planned and sophisticated, large quantities were involved and there were particular aggravating factors in relation to the particular individuals.
46. (iii) Osman: the two conspiracies
47. We will turn, first, to consider the case of Osman. The judge accepted in the case of Osman that as regards the 2001 conspiracy his role had been less than that of Mustafa who was given a term of 14 years. He considered that for various reasons it would not be right to look at the two conspiracies separately; he took as his starting point 18 and a half years for the two conspiracies. He then discounted that by approximately 30 per cent. He arrived in this way at the sentence of 13 years on count 1 (the 2006 conspiracy), making the sentence of 7 years on count 2 for the 2001 conspiracy concurrent.
48. It is important to contrast that immediately with the position of Olgundeniz. He had been convicted in 2001 for a conspiracy to supply heroin. Although it was not the same conspiracy as that in which Osman had been involved, Olgundeniz had received and served an actual prison sentence of ten years. On release he had become engaged in the 2006 conspiracy. The judge took as a starting point for him, as the judge took the view he was higher in the conspiracy than Osman and Catal, 21 years. The result, and this is the primary complaint of Olgundeniz, is that he was effectively punished for what he had done in 2001 and for what he did in 2006 by a combined term that was vastly longer than that imposed on Osman.
49. It seems to us that that provides a very powerful illustration of why we consider the judge made an error of principle in his approach to the sentence of Osman in this case. He was asked to consider, and did consider, Attorney General's Reference No 2 of 2006 (Gokenc) [2006] EWCA Crim 755, [2006] 2 Cr App R(S) 94, where in conspiracies that were separated in time within the same year by a month or two, the court approached the two conspiracies on the basis they should be looked at together. We think that that approach plainly reflected the reality in that case. Dealing with these two conspiracies, separated in time by 5 years, together plainly did not reflect the reality.
50. The approach that the judge should have followed, in our view, was to have considered what was the appropriate sentence for the 2001 conspiracy, to have considered what was the appropriate sentence for the dangerous driving and what the appropriate sentence was for the 2006 conspiracy. He should have then considered whether it appropriate to make the sentences consecutive or concurrent and if he decided to make them consecutive, he should then have considered whether the overall result was one that was too high on the basis of totality.
51. It seems to us that a person such as Osman, who deliberately and by an extremely dangerous and unlawful act evaded being punished in 2001, could not justly stand before a court and not be severely punished separately for what he did in 2001. We, therefore, consider that the sentences passed by the judge were unduly lenient and the proper course would have been to pass consecutive sentences of significant periods.
52. We consider therefore that looking at the 2001 conspiracy, as best we can judge on the basis of plea, that a sentence, taking into account the full 30 per cent reduction, was properly assessed by the judge as seven years (which he passed as the concurrent sentence for this conspiracy); that the dangerous driving was plainly something to be marked with a consecutive sentence, as it was an extremely dangerous act taken to evade arrest, and should have been marked with a further sentence of 18 months' imprisonment; and that, on the basis that Osman and Catal had the same level of responsibility, the judge should have approached the 2001 conspiracy on the same basis for them both. He took as a starting point for Catal 16 years. We think that should have been the correct starting point for Osman, and, giving appropriate credit, would bring it down to 11 years.
53. That would mean a total sentence of 19 and a half years if those sentences were all made consecutive to each other. We think, taking into account totality, that that may be on the high side. We therefore propose to substitute for the sentence of 13 years passed by the judge a sentence of 18 years' imprisonment on Osman.
54. (iv) Osman: The effect of evading arrest
55. In doing that we have acted on the basis that he should receive a full 30 per cent credit for the plea made in 2007 to the offence committed in 2001. We have done so because it seems to us that the principles in the sentencing guideline, "Reduction in Sentence for a Guilty Plea" (revised 2007) mean that in general terms the reduction to be made is a reduction to be made to people once they are charged and arraigned. It is clear from the wording of the guidelines (see paragraph 2.2) that the reduction in sentence is made, because a guilty plea avoids the need for a trial, thus enabling other cases to be disposed of more expeditiously, shortens the gap between charge and sentence, saves considerable cost and in the case of an early plea saves victims and witnesses from concern about having to give evidence.
56. We reserve the position for consideration hereafter (because we think that we have dealt with the justice of the case on what we have stated) as to whether, in circumstances where someone sets about evading arrest, the full 30 per cent really ought to be applied. We do not think we need discuss that point further. We merely draw attention to the observation of the editors of Archbold at paragraph 5-83 of the 2008 edition where they put forward a cogent argument in relation to remorse, which, applied by parity of reasoning, would mean that someone who evades arrest for a very long time still is entitled to a 30 per cent discount. We think that position ought to be reserved for the future. We have acted on the basis that in this case we have given the full 30 per cent.
57. (v) Catal
58. We turn to the position of Catal. It has been submitted to us that his sentence is unduly lenient. We cannot accept that submission. Catal fell to be sentenced on the basis of plea which the judge accepted. The time for complaint about the role Catal played and, consequently, the sentence should have been a matter that should have occurred to those accepting the basis of plea at that time. Once that basis of plea was accepted, we consider that the judge approached the matter entirely correctly. Therefore we refuse the Attorney General leave in respect of Catal.
59. (vi) Weight
60. As regards Weight, it is clear to us that the sentence for his involvement in this extensive conspiracy, even on the periphery, was serious. He was the driver. It is submitted eloquently on his behalf that the judge had the opportunity of seeing him and observing him during the trial and was entitled on the basis of the view he formed of him to sentence him to what is accepted to be a sentence below the tariff for this sort of activity.
61. We regret to say we cannot is agree. A person's character and approach to matters does not feature highly in dealing with drugs cases. This activity was one that plainly should have had a more severe sentence than five years. We therefore, as we have indicated, grant the Attorney General leave in respect of the sentence as it was unduly lenient. In this case because it is a short sentence, we give credit for double jeopardy and increase the sentence to one of seven years' imprisonment. That is a sentence at the very bottom of the scale, but in the circumstances we think it meets the justice of case.
62. (vii) Olgundeniz
63. We finally turn to the position of Olgundeniz. There is the problem, it seems to us, in the way this case proceeded. As we have explained, Olgundeniz put forward a basis of plea, accepted by the Crown, where he described his position as one that was at least in parity with or under both Catal and Osman. There is nothing in any of the transcripts to show that the judge made it clear that he was rejecting that basis of plea, until he came to his sentencing remarks, where he sentenced Olgundeniz on the basis that he was the senior organiser within the country and there were links with Reis. That was not the basis on which Olgundeniz pleaded; it is most unfortunate that this issue was not clarified. We have already averted to the entire lack of clarity in the whole approach to bases of plea. We therefore think Olgundeniz has a legitimate complaint in that respect.
64. However, it seems to us that the judge should, when sentencing him, have taken proper account of the fact he had just been released from prison for a very serious offence of supplying cocaine and had immediately thereafter returned to this trade; he should therefore have activated a very significant part of the previous sentence. It was not just, in our view, to activate only the period on remand from 30th July to the date of sentence. Substantially the whole of the period should have been activated.
65. It seems us to us, therefore, that although there is a point that Mr Olgundeniz can make about the injustice he suffered as regards the way his role was treated, that injustice is counter balanced by the failure to activate substantially all of the period of imprisonment. Therefore, doing the best we can, but for reasons that are very different from the judge, and although we grant permission to appeal, we dismiss the appeal because we do not think that the sentence on its true basis was manifestly excessive, though for reasons different from those expressed by the learned judge.
66. We are extremely grateful to counsel for their considerable assistance today; we stress that this case yet again emphasises the great need for care in dealing with bases of pleas where in drugs cases, as Miss Johnson has so helpfully accepted before us today, clarifying the roles of those involved is of the utmost importance.