England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		Tuesday, 19 May 2009

1. MR JUSTICE HOLROYDE: On 15th December 2008 these four appellants pleaded guilty in the Crown Court at Southampton to a joint offence, contrary to section 170(2)(b) of the Customs and Excise Management Act 1979, of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a large quantity of cocaine, a class A controlled drug. On 16th January 2009 they were each sentenced to 12 years' imprisonment, with credit being given for the days they had spent on remand in custody. They now appeal against their sentences by leave of the single judge.
2. The appellants travelled together on a cruise liner to the West Indies. The cruise lasted about three weeks and included visits to a number of Caribbean islands. In the course of it the appellants left the ship together whilst docked in St. Lucia and were provided with shrink wrapped bags of powder containing cocaine. Significantly, St. Lucia was not the last port of call and so the appellants must have had the cocaine in their joint custody on board the ship for a number of days. When the ship returned to Southampton they each strapped a number of the bags to their bodies beneath their clothing and disembarked. They were stopped and searched and the drugs were found. Upon analysis the powder was found to weigh in the aggregate about 20 kilograms. The total quantity of cocaine converted to 100 per cent purity was 12.75 kilograms. The street value was estimated at £1.75 million.
3. It was accepted by the Crown that the appellants were acting as couriers for others whom they did not identify. Their reward was that the expenses of the cruise were paid for them and they were either given or offered additional sums of money. The point is made on the appellants' behalf that this was not a particularly sophisticated offence, in particular because the cruise was booked in their correct names. That is so. It seems to us, however, that the whole cruise was in reality an elaborate disguise for the purpose of their travel to the Caribbean.
4. The appellant Natalie Quinn was 26 years old and the mother of four young children. She had convictions for driving with excess alcohol which are irrelevant to this appeal. The appellant Camille Dupee was only 19 years old and of previous good character. The appellant Briony Dyce was 25 years old and of previous good character. The appellant Calvin Hylton was 41 years old, a father of four and of previous good character.
5. In relation to each of the appellants we have seen not only a pre-sentence report but also a bundle of letters by way of testimonials. It is clear from this material that the involvement of the appellants in this very serious offence has come as an enormous shock to their family and friends, who write in convincing terms to the effect that the offence is wholly out of character. It is also clear that the crime is one which brings shame and distress upon the appellants' respective families. All of these letters are characterised by the courtesy, moderation and realism with which they are expressed, and we can readily accept the picture they give of the usual character of these appellants. We also accept that each of the appellants is genuinely remorseful for his or her part in this importation. Three of them have made that remorse clear in their own letters to the court, also well expressed. The assessment in each of the pre-sentence reports that none of these appellants is likely to re-offend accords with our own view.
6. In short, these are appellants who are, or are entitled for present purposes to be treated as, persons of previous good character who have been drawn into serious crime and who now, facing as they do the prospect of remaining in prison for a long time, bitterly regret ever having become involved. Although they accept that they could have turned down the offer of the cruise in the first place or could have withdrawn at a later stage, it may well be correct that each of them became apprehensive or fearful of the possible consequences of trying to pull out once they had become involved. It must however be remembered that if their importation had been successful they would have introduced into this country a large quantity of a drug capable of ruining many lives.
7. It is true that they were only couriers but they were also the persons who actually brought the cocaine into this country and so played a vital part in its importation. It is in the nature of drug importation that those who organise it frequently use as couriers persons of good character and persons who by reason of age, financial situation or personal circumstances are vulnerable to a greater or lesser degree. That being the case, and for that reason, there is a limit to how much weight a sentencing court can give to personal mitigation in a case such as this.
8. The judge took the view that he should pass the same sentence on each of the appellants. We agree. The appellant Miss Dyce had booked the tickets for the cruise and indeed had also booked tickets for two more persons who in the event did not travel. On behalf of other appellants submissions were made at an earlier stage that her role was therefore the more serious, and that accordingly the other appellants should not have received the same sentence as her. It seems to us however that neither that point, nor indeed any of the other points of distinction between appellants which can be identified, makes it appropriate to distinguish between them in sentencing. The point of overriding importance is that they all, as adults, played their active roles as members of a team collectively bringing a very large quantity of cocaine into this country.
9. In the course of his sentencing remarks, the judge indicated that he considered all of the appellants equally responsible for the importation. He then made these observations, with which we agree, at page 3E of his sentencing remarks:

"Being a courier is a vital role. It is the means by which the drugs actually get into this country. It was obviously a well run and organised international drugs operation that each of you connected with and you succumbed to their overtures. Nobody goes on an all paid up 23 day cruise to the Caribbean without realising that something serious by way of payback is required.

You may not have realised quite how much you were going to be asked to bring back, but that is the consequence of getting yourself involved in such a serious operation."

10. It is accepted before us on behalf of all of the appellants that a long prison sentence was inevitable. All however submit that the term of 12 years is manifestly excessive in length and that the judge must have taken too high a starting point.
11. We therefore turn to consider the appropriate sentence for couriers involved in this importation. As is well-known, this court in R v Aranguren and others [1994] 99 Cr.App.R 347 revised the guidelines for sentencing in cases involving class A drugs so as to focus on the weight of the drug at 100 per cent purity rather than on the estimated street value. In relation to importations, Lord Taylor CJ said this at page 352:

"Where the weight of drugs at 100 per cent purity is of the order of 500 grams or more, sentences of 10 years and upwards are appropriate. And where the weight at 100 per cent purity is of the order of five kilograms or more, sentences of 14 years and upwards are appropriate."

The quantity here at 100 per cent purity is of course two-and-a-half times the five kilograms there mentioned.

12. Various reported cases in which those guidelines have been applied have been cited to us in the written submissions, together with some not relating to importation which were of no real assistance to us. In particular, all counsel rely heavily on the sentence imposed on the appellant Littlefield - one of the "others" in the case of Aranguren and others. He was concerned in the importation of cocaine which at 100 per cent purity amounted to 12.14 kilos. He had been convicted after a trial and sentenced to 15 years. In the circumstances of his case that sentence was said by this court to be "entirely appropriate" and his appeal against sentence was dismissed. Counsel rely on that case in support of their collective submission that the apparent starting point here, which they suggest must have been 18 years, was too high and that the judge should have started at 15 years and passed sentences of 10 years' imprisonment.
13. Two points must, however, be made about the case of Littlefield. First, it should be noted that Littlefield himself did not carry the cocaine into this country. He was said to have made "extensive visits abroad in preparation of the arrival by air of this very large consignment of cocaine" which was delivered to his home address. Secondly, and as was pointed out by my Lord, the Vice President, in the course of submissions to us, that was a case in which this court dismissed an appeal against sentence. In doing so the court did not have to, and did not, give specific consideration to whether a somewhat longer sentence would have been manifestly excessive.
14. We have considered the various cases mentioned in the written submissions and other decisions of this court which were not cited to us but which we thought relevant. Inevitably the facts of each of the reported cases differ from the present case in a number of material respects and we do not think anything would be gained by a more detailed recital of any of those cases.
15. Although we reject any conclusive analogy with the case of Littlefield, we are here persuaded that the judge does seem to have taken as his starting point a sentence which was too high in the circumstances of this case. Important though the role of these appellants was, they were no higher in criminal hierarchy than couriers, and we are very conscious that the sentences on them have to be proportionate to the sentences which would be appropriate for those above them in the hierarchy, if ever the real organisers were brought to justice. In our judgment, the appropriate sentence for these appellants after a trial would have been one of 16 years.
16. We must next consider to what extent that starting point should be reduced to reflect the guilty pleas. In the course of his opening of the facts in the court below, counsel for the Crown submitted to the judge that this was a case in which the evidence was overwhelming and that accordingly the judge would be entitled, in accordance with paragraphs 5.3 and 5.4 of the Sentencing Guidelines Council Definitive Guideline on Reduction of Sentence for Guilty Plea, to withhold some part of the reduction. Counsel for each of the appellants made their submissions as to why that should not be so. The judge then referred to the guidelines both as to sentence and as to the credit to be given for a guilty plea. He did not specifically say what credit he felt to be appropriate, nor did he indicate what sentence he would have passed in the event of conviction after a trial. He did however say:

"... you each pleaded guilty at the first reasonable opportunity and in my judgment you are entitled to substantial discount and credit for that."

17. It is perhaps unfortunate, in view of the submissions which have been made to him on the point, that the judge did not state precisely what conclusion he had reached about the starting point of the sentencing process, or about the appropriate reduction for plea and other mitigation. Be that as it may, it seems to us that the evidence here was indeed overwhelming and that none of the appellants was immediately forthcoming when arrested or when questioned by the police. Those are features which would certainly justify the withholding of some credit. On the other hand, pleas were promptly entered as soon as the Crown had served the evidence confirming the analysis of the drugs. We think it likely that the judge, who made plain in his sentencing remarks that he had taken all relevant circumstances into account, did in fact reduce each of the sentences by one-third. In any event, we have come to the conclusion that each of these appellants is entitled to a reduction of one-third from the sentence which had been appropriate after a trial, and we feel able in addition to round down in their favour the arithmetical result of applying that reduction to what we have indicated as the correct starting point.
18. For those reasons, whilst we share the view of the judge as to the seriousness of the offence, we are persuaded that the sentences were too long. Accordingly, we quash the sentences imposed by the judge and in the case of each appellant we substitute a sentence of 10 years and six months' imprisonment. We direct that the appellants shall have credit for the time in custody on remand, which we understand to have been 88 days in the case of Mr Hylton and 89 days in the case of each of the other three appellants. To that extent the appeals are allowed.