England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE INNER LONDON CROWN COURT
H.H.JUDGE CHAPPLE

		Royal Courts of Justice Strand, London, WC2A 2LL
		2 December 2009

Lord Justice Maurice Kay

Introduction

1. This is an appeal by leave of the Full Court (differently constituted) against sentences imposed upon the Appellants by His Honour Judge Chapple sitting in the Inner London Crown Court.
2. The case from which the appeal arises involved eight defendants, and was concerned with conspiracies, in the period from 1 September 2006 to 28 February 2007, to supply, in total, massive quantities of cocaine (Count 1), MDMA (Count 2), amphetamine sulphate (Count 3), cannabis (Count 4), and cocaine (Count 5 which did not name any of the Appellants), together with associated offences of the possession of MDMA with intent to supply (Count 6), the possession of amphetamine sulphate with intent to supply (Count 7), and another conspiracy to supply cannabis (Count 8).
3. The alleged leader of the conspiracies was a man called P, who stands charged on Counts 1-5, but has yet to be tried because of ill-health.
4. On 16 November 2007, Jackson (now aged 45) pleaded guilty to Counts 6 & 7.
5. On 12 March 2008, at the intended start of their trial, Sangster (now aged 41) pleaded guilty to Count 1, and Burnell (now aged 38) pleaded guilty to Count 3 and to Count 8 (which was added to the Indictment on that date, as an alternative to Count 4 in his case).
6. Thereafter, Burnell was tried on Counts 1 and 2. At the conclusion of the Prosecution case, the learned Judge ruled that there was no case to answer, and accordingly Burnell was acquitted by direction.
7. On 22 May 2008 Burnell, who was alleged to be akin to a First Lieutenant to P, was sentenced to 8 years' imprisonment on Count 3, and to 4 years' imprisonment consecutive on Count 8 – making a total of 12 years' imprisonment, with a direction that 96 days spent on remand should count towards that sentence.
8. On the same date Sangster, who was involved as a courier over a two week period in October 2006, including the supply of 2kgs of cocaine on 30 October 2006, was sentenced to 10 years' imprisonment on Count 1, with a direction that 190 days spent on remand should count towards that sentence.
9. On 2 December 2008 Jackson, who was involved on 18 January 2007 in the receipt (from a co-defendant called Richter – see below) of almost 50,000 MDMA (Ecstasy) tablets and 9.766kgs of powder containing 4 per cent amphetamine sulphate, for onward delivery to a dealer in Wales, was sentenced to 8 years' imprisonment on Count 6, and to 3 years' imprisonment concurrent on Count 7. The discount that he received for his otherwise early pleas was reduced because he had put forward an unrealistic Basis of Plea, which was only withdrawn the day before he was sentenced. In addition, he admitted being in breach of a suspended sentence, for which he was sentenced to 6 months' imprisonment consecutive. In his case therefore, there was a total sentence of 8½ years' imprisonment, with a direction that 384 days spent on remand should count towards it.
10. As to the other four defendants, who pleaded guilty at various stages, three were sentenced along with Burnell and Sangster on 22 May 2008.
11. Joseph Fisher, the 39 year old Quartermaster of the conspiracies, who was given full credit for early pleas, was sentenced to 14 years' imprisonment on Count 2, and to 8 years' imprisonment concurrent on Count 3, making a total of 14 years' imprisonment, less time spent on remand.
12. Oliver Jenner, a 39 year old drugs dealer based outside London, who was to have received the 2kgs of cocaine from Sangster (above) on behalf of another network on 30 October 2006, was sentenced to 8 years' imprisonment on Count 1, less time spent on remand. He had pleaded guilty at a late stage. His application for leave to appeal was refused by the Single Judge, and has not been renewed.
13. Gary Pettican, a 30 year old small time facilitator and courier, who received a 20% discount for his pleas, was sentenced on Counts 3 and 4 to a total of 3½ years' imprisonment, less time spent on remand.
14. The remaining defendant David Richter was sentenced with Jackson (above) on 2 December 2008. He was the 68 year old courier who replaced Sangster, and who delivered the Ecstasy tablets and the 9.766kgs of powder containing 4% amphetamine sulphate to Jackson on 18 January 2007. He was given a reduced discount for his otherwise early pleas, because he had put forward an unrealistic Basis of Plea, which was rejected by the learned Judge. He was sentenced to a total of 9 years' imprisonment on Counts 3 and 6, less time spent on remand. He was also sentenced to 12 months' imprisonment concurrent for his part in a benefit fraud.

The Facts

15. The prosecution resulted from a long-term covert surveillance operation by the Metropolitan Police
16. It was the Prosecution case that the conspiracies alleged in Counts 1-5, each covering the period from 1 September 2006 to 28 February 2007, were in fact all part of one large overall conspiracy. There were separate Counts simply in order to avoid any legal difficulties.
17. As indicated above, P was the alleged leader, and the overall amount of drugs involved was massive.
18. Fisher, the Quartermaster, was based in Southend. His activities included the use of a lock-up garage near his home for the storage of Ecstasy tablets, and for cutting amphetamine sulphate, prior to large-scale supply to others. Paperwork alone, eventually recovered after his arrest, indicated the supply of at least 840,000 Ecstasy tablets, 500kgs of amphetamine sulphate and 373kgs of skunk cannabis.
19. As indicated above, Burnell was alleged to be akin to a First Lieutenant to P. During the conspiracy period, he used nine different mobile telephone numbers (changing number, in particular, if a conspirator was arrested), and was in constant contact with P – averaging nine calls per day. He knew all the other defendants, except Jackson.
20. As part of Burnell's activities, he had a lock-up garage in Avon Road in Cranham (near Upminster) in Essex. There was a steel vault in the garage that was used to store very large quantities of amphetamine sulphate and cannabis, prior to the supply of them to others. In a professional sale operation, designed to protect the location of the garage, purchasers were required to hand over the vehicle that they were using to Burnell, or to one of his associates, after which the vehicle (absent the purchaser) was driven to the garage, loaded with the requisite drugs, and then returned to the purchaser. On Burnell's own conservative estimate, this part of his activities involved the supply to others of a total of about 200kgs of amphetamine sulphate and 310kgs of cannabis and skunk cannabis. The prosecution case was that the amounts involved were substantially higher.
21. In mid-September 2006, Pettican was observed to supply what transpired to be 93.7kgs of cannabis to a customer in East London.
22. The first main courier to be used after 1 September 2006 was Sangster. He was recruited at the end of September 2006 by Fisher (after the arrest of an earlier courier – a former police officer called Shepherd). Fisher introduced him to P. Burnell knew Sangster from the past. Sangster's eventual Basis of Plea indicated that he did not realise the criminal nature of the activities that he became involved in until about 18-20 October 2006, after which he took a knowing part until his arrest on 30 October 2006.
23. In mid-October Burnell oversaw the supply of a large quantity of cannabis to the West Country, and later received payment in cash, which was passed on to P.
24. On 20 October 2006 Burnell was observed in the vicinity of the lock-up garage in Avon Road, Cranham.
25. On 21 October 2006, Burnell & Sangster drove in separate vehicles to the Waterstock Golf Club in Oxfordshire, just off the M40. The purpose of the journey was to meet up with Jenner (who had been one of Burnell's drugs contacts for some time), for Burnell to introduce Jenner and Sangster to each other, and for Jenner to pay for the drugs that Sangster was going to deliver to him at the Golf Club nine days later. Jenner duly handed over a bag containing cash, which was later given to P.
26. On 30 October 2006 Sangster drove to a café in the Upminster area where he met Burnell and P. A long conversation took place. Burnell then went to his lock-up garage and collected a large quantity of amphetamine sulphate. He then drove to Wales with the amphetamine sulphate, in order to supply it to a customer. He kept in regular contact by telephone with Sangster whilst en route.
27. Meanwhile Sangster drove to a rendezvous with another man, from whom he collected a bag, which was later found to contain a sealed bag of dog food – inside which had been secreted two heat-sealed clear plastic bags containing a total of 2kgs of cocaine at an average of 74% purity (the equivalent of 1.437kgs at 100% purity). The drugs were worth about £70,000 wholesale, and if cut to about 30% purity would have had a street value of about £300,000 to £500,000.
28. Having collected the cocaine, Sangster drove to the Waterstock Golf Club in order to meet up with Jenner. He was arrested there, as was Jenner when he arrived. A further quantity of cocaine (the equivalent of 20.55gms at 100% purity) was found in Jenner's car, together with drug dealing paraphernalia. A further small amount of cocaine was recovered at Jenner's home, along with £1,000 in cash. A search at Sangster's home revealed £1,700 in cash.
29. In interview, Sangster denied any involvement. However, as indicated above, he later put in a Basis of Plea in which he admitted guilty involvement in the collection of the payment on 21 October, and in the intended supply of the drugs on 30 October. It was his case that Burnell had supervised the intended supply by telephone, and that Burnell knew that the drug was cocaine. Burnell's acquittal on Count 1 means that the inference to be drawn from the telephone evidence (to which we make reference above) against him is that he was supervising the drugs delivery, but that he did not know that the drug was cocaine.
30. On 31 October 2006 P, Fisher and Pettican were seen to meet up in Essex, and Pettican was seen to move bags believed to contain amphetamine sulphate.
31. Following Sangster's arrest, Burnell recruited Richter to take Sangster's place as the main courier. Richter was on bail in relation to a benefit fraud that he had previously been a party to (above).
32. On 23 November 2006 Burnell was seen with Richter in the vicinity of the lock-up garage in Avon Road. From that date until the end of January 2007 covert video recordings were made of events at the garage. Burnell, Richter and Pettican were seen there on numerous occasions up to 16 January 2007. Their own vehicles were used for the delivery of large quantities of amphetamine and cannabis. The drugs were stored in the steel vault, prior to supply. In addition, as already mentioned above, purchasers' vehicles were brought to the garage on numerous occasions to load them up with large quantities of drugs.
33. On 4 January 2007 Burnell was observed to have a meeting with P and Fisher at a public house.
34. On 8 January 2007 P met up with Richter not far from Burnell's garage, from which Richter collected a box. Richter was later seen to meet up with Burnell.
35. On 16 January 2007 Burnell and Pettican visited the Avon Road garage. This was the last ever visit to it.
36. On 18 January 2007 Burnell met up with Richter in Leigh-on-Sea, and Burnell put a holdall containing 9.766kgs of powder containing 4% amphetamine sulphate into Richter's car. Richter then went to Southend to meet Fisher, from whom he collected almos t 50,000 Ecstasy tablets. Richter then drove to a public house car park in Newport in South Wales, intending to supply the Ecstasy tablets and the amphetamine sulphate to Jackson, who was collecting the drugs for a drug dealer who he knew as 'Body Builder'. Jackson's involvement was limited to that day. As with Sangster, the telephone evidence against Burnell showed that he was supervising Richter (and was also in contact with 'Body Builder') by telephone – though not (by reason of his acquittal on Count 2) appreciating that Ecstasy was involved.
37. The Police moved in as the hand over was taking place, and the drugs were recovered. The street value of the Ecstasy tablets alone was about £250,000. Richter and Jackson were arrested.
38. On 31 January 2007 P and Fisher met up in Southend, after which Fisher was followed to his lock-up garage. He was later seen to return to the garage in his van, and to collect two boxes. He was arrested. The boxes were found to contain 130,000 Ecstasy tablets of a type identical to those recovered in South Wales thirteen days before.
39. When the garage was searched the Police found 5.34kgs of amphetamine sulphate that was intended to be cut, together with all the paraphernalia of a large amphetamine-cutting factory – including 17.4kgs of high purity caffeine, a quantity of glucose, and two sets of masks and surgical gloves. Subsequent scientific examination linked one of the sets to Fisher, and another used pair of gloves (with traces of amphetamine on them) to Burnell. It was the prosecution case that Fisher and Burnell were the two men responsible for the cutting of amphetamine at the garage.
40. Documents evidencing large-scale drug dealing were recovered from a briefcase in the garage, and also from Fisher's home. As indicated above, these documents alone showed the supply of 840,000 Ecstasy tablets, over 500kgs of amphetamine sulphate, and 373kgs of skunk cannabis. The recovered documents also contained references to different sums of money including amounts ranging from £225,000 to £450,000 – indicating overall dealings worth a minimum of hundreds of thousands of pounds. £80,000 in cash was recovered from a safety deposit box under Fisher's control.
41. Burnell's lock-up garage at Avon Road in Cranham was searched on 27 February 2007, and the vault was found to contain 2.94kgs of amphetamine sulphate and 942gms of skunk cannabis. Later that day, Pettican was arrested at Gatwick Airport, as he was trying to board a flight to Spain. He told the Police "I'm not at the top of this, I'm right at the bottom".
42. Also on 27 February 2007, Burnell was arrested at the address where he was by then living in Dunmow in Essex. A search revealed a number of mobile telephones, and a Royal Mail receipt for a letter containing cash sent to Richter in Cardiff Prison. In subsequent interview, Burnell put forward a seven page prepared statement. As indicated above, he eventually pleaded guilty to Counts 3 & 8 at a very late stage. Count 8 was added to the Indictment as an alternative to Count 4. It alleged a conspiracy to supply cannabis over the same period with P and other persons unknown, rather than (as in Count 4) with P, Pettican, a man called Robert Gregory, and other persons unknown.
43. P was also arrested on 27 February 2007. In subsequent interview, he claimed that he was a bookmaker, making bets on the internet.
44. Burnell had no previous convictions.
45. Sangster had three previous convictions relating to drugs. In 1989 for two offences of supplying cannabis, and for one offence of possessing cannabis he was sentenced to a Probation Order for 12 months. In 1996 for two offences of possessing amphetamine sulphate with intent to supply, and for one offence of possessing cocaine, he was sentenced to a total of 5 years' imprisonment. In 2005 for possessing cocaine, he was sentenced to a Community Order with unpaid work and supervision requirements.
46. Jackson had a large number of previous convictions for various offences. In 1999 for two offences of possessing controlled drugs, he was sentenced to a total of two months' imprisonment. In February 2006, for offences of possessing amphetamine sulphate with intent to supply, supplying amphetamine sulphate, possessing methadone, possessing cannabis resin and having a counterfeit currency note, he was sentenced to a total of 9 months' imprisonment suspended for 18 months. His involvement on 18 January 2007, and his consequent pleas to Counts 6 & 7, meant (as indicated above) that he was in breach of the suspended sentence.
47. Fisher, Jenner & Pettican had no previous convictions, whereas Richter had numerous previous convictions. In 1988 he was sentenced to 7 years' imprisonment for importing a very large amount of cannabis.
48. We now turn to the individual appellants.

Burnell

49. When passing sentence on Burnell the judge said:

"You were said by the prosecution to be first lieutenant to P in these conspiracies. That description seems to me entirely appropriate and apt. Your role in these conspiracies was central and pivotal. You accept that you are closely concerned and connected with P as a driver and as a courier but I am sure that you were very much more that his 'gofer'. You are an essential part of his organisation and empire. … Heavily involved with massive quantities of amphetamine sulphate and cannabis. That is as plain as a pikestaff on all evidence I heard during the course of the trial and all of the evidence that I have read, particularly the telephone evidence and the observation evidence.

I am satisfied, for example, that the events in which you were involved in – the events of 30^th October 2006 … you introduced Sangster and Jenner. You were in Wales as they were meeting in Oxfordshire, but such was your proficiency that you were effectively multitasking, delivering a consignment of amphetamine sulphate to Wales, whilst, at the same time, supervising and overseeing the meeting between Sangster and Jenner in Oxfordshire. … Your supervision of that meeting demonstrates your importance to P and his empire. I repeat that the description of first lieutenant is right.

You accept … that on any showing vast quantities of drugs were going through the Avon Road garage … premises with which you were involved regularly and often. On your own estimates, Count 3 involves something in order of 200 kilos of amphetamine sulphate, Count 8 160 kilos of cannabis resin and 150 kilos of skunk cannabis. I take these to be very conservative estimates. … This conspiracy dealt with drugs high up in the chain of distribution so at times the purity will have been very high, that is to say uncut.

You pleaded guilty to these counts at a late stage, that is to say at the outset of the trial, but I do give you such credit as I can for those pleas of guilty. .I propose, since I know no reason to depart from this, to follow the guidance given by the Sentencing Guidelines Council in your case. The credit for your guilty pleas on the first day of trial will be 10 per cent….

I come back to some of the hallmarks of your high degree of involvement in Counts 3 and 8. Firstly, I note your very substantial involvement with the Avon Road garage. A professional operation with a locked vault for the storage of high value drugs. Secondly, the degree of professionalism of the operation there. One sees customers' cars being driven there by one or other of the conspirators and then returned to the customer, so protecting the location of the garage and, I imagine, providing a service designed to impress the customer. The quantities involved at the Avon Road garage are such that they can barely be lifted by one man. More generally, in the conspiracy at large, I note that when Sangster was arrested it was you who then recruited Richter. Finally, whenever there were arrests phones are jettisoned. That speaks to me volumes about the expertise and professionalism of this conspiracy . You used no less than nine mobile phones in the period with which these conspiracies are concerned."

50. The judge then proceeded to pass the sentence of eight years imprisonment on Count 3 and four years imprisonment consecutive on Count 4.
51. On behalf of Burnell Mr Bromley-Martin QC advances submissions which we can deal with under five headings. The first raises a point of principle.

(1) The point of principle

52. The point of principle arises in this way. It is said that, although there were separate counts in the indictment alleging conspiracies to supply different named drugs of different classes, the reality is that there was a single conspiracy which was only sub-divided for pleading purposes. Having been acquitted in relation to Count 1 (cocaine) and Count 2 (MDMA), Burnell pleaded guilty to Count 3 (involving the class B drug amphetamine sulphate) and Count 8 (involving cannabis, then a Class C drug). The maximum sentence for supplying either a Class B or a Class C drug is 14 years' imprisonment. The maximum sentence for a single conspiracy is therefore 14 years imprisonment. In these circumstances, submits Mr Bromley-Martin, it was wrong in principle to pass consecutive sentences totalling 12 years, following pleas of guilty on a man who was, on any view, not the leading light in what was in reality a single conspiracy. The approach of the judge did not leave headroom for yet more serious cases. For example, if P fell to be sentenced on the same two counts after a trial, he could not be given more than 14 years. Moreover, although the quantities of drugs in this case were admittedly vast, room should be left for cases involving even greater quantities. In these circumstances, the judge ought to have acknowledged that there was in reality a single conspiracy and that, although indicted in separate counts, it ought to have attracted concurrent sentences, with a higher sentence for the Class B drug.
53. The question we have to consider is whether the judge was required to adopt such an approach as a matter of principle. We accept that in many cases of supplying drugs, two or more offences are charged although there was in reality a single transaction – an obvious example is where the supplier, on the same occasion, supplies the same customer with two drugs of different classes for a single transfer of cash. There it can be said that charging separate offences is simply the consequence of the different classification of the two drugs. However, the present case is not that simple. Although similar considerations no doubt informed the decision to charge separate conspiracies, they were not the only justification for so doing. Separate conspiracies were also the best way of describing and encapsulating the criminality of a going concern which operated for a considerable period of time. The criminality embraced the supply of cannabis on a large scale and the supply of amphetamine sulphate on an enormous scale. The two drugs were not only classified differently. The conspiracies relating to them inevitably involved differences in activity. In particular, it is clear that the amphetamine sulphate was adulterated whilst in Burnell's care for the maximisation of profit. In these circumstances, we do not consider that, as a matter of principle, the judge was bound to proceed on the basis that Counts 3 and 8 were manifestations of a single conspiracy which could not, in any circumstances, attract a total sentence in excess of 14 years. Nor do we consider that he was bound to pass concurrent sentences although, of course, in passing consecutive sentences it was incumbent upon him to keep in mind the principle of totality. It is plain that he did keep that principle in mind because he concluded his remarks in relation to Burnell with the observation that there was a degree of arbitrariness in the distribution of the terms of imprisonment as between the two counts but

"I am very much more concerned with the total sentence which I am sure properly reflects your overall criminality."

54. We are not persuaded that the judge fell into any error of principle.

(2) Burnell's role

55. The submission here is that the judge attributed to Burnell a much more important role in the conspiracies than was justified on the evidence. The submission is coupled with a further submission that if the judge was going to go beyond the role admitted by and on behalf of Burnell, he was obliged to hold a Newton hearing. It is clear to us that the role attributed by the judge to Burnell was consistent with the evidence. Whilst it is true that Burnell was the waged agent of P and was not a profit-sharing entrepreneur, the evidence plainly justified the description of him as P's "first lieutenant". The evidence certainly does not point to anyone else qualifying for such a description in relation to these drugs. It depicted Burnell not only as a driver/courier, but also as an adulterator, a distributor, a money-handler and a pivotal communicator. Moreover, the judge was entitled to resort to the evidence in the trial in which Burnell was acquitted of the Class A conspiracies. The undisputed evidence in the trial provided a graphic description of Burnell's involvement. His acquittal, by direction of the judge, was based simply on the finding that it had not been proved that Burnell knew that the drugs in question were Class A drugs.
56. We are unimpressed by the submission that the judge erred by not holding a Newton hearing. There was no written basis of plea. The prosecution clearly adhered to their case that Burnell was P's first lieutenant. No Newton hearing was sought on behalf of Burnell. Mr Bromley-Martin tells us that he expected that if Burnell's admitted role was not accepted by the judge then the judge would initiate a Newton hearing. However, there are two reasons why we consider that the judge was entitled to proceed to sentence without a Newton hearing. The first is that, to the extent that it was being suggested on behalf of Burnell that he was simply a courier/driver, the judge was entitled to reject that as "wholly implausible": see the authorities referred to in Archbold, 2010 edition, paragraph 5-75. The evidence establishing a much greater role was not realistically susceptible to challenge in this case, particularly when, in interview, Burnell had given mendacious accounts. The second reason is that, in the course of his oral submissions, Mr Bromley-Martin conceded the additional roles of adulterator, distributor, money-handler and communicator. Ultimately, it may be said that he was more concerned about the label of "first lieutenant" than the admitted facts which led to its use. We are entirely satisfied that it was an appropriate label and that the judge was justified in adopting it without resort to a Newton hearing.

(3) Discount for guilty plea

57. The complaint is that, whilst Burnell was not entitled to full credit for his pleas of guilty, he ought to have been accorded more than a discount of 10 per cent. In support of this submission Mr Bromley-Martin refers to discussion in the weeks preceding the trial in which those representing Burnell were seeking to negotiate with the prosecution a disposal whereby he would plead guilty to the offences in relation to Class B and Class C drugs but not those in relation to Class A. The prosecution were not attracted by the suggestion. However, this did not leave Burnell to seek re-arraignment on Counts 3 and 8 on any occasion prior to the first day of the trial. Mr Bromley-Martin concedes that guilty pleas were being withheld for as long as possible as a bargaining tool in the hope of negotiating a way out of the Class A counts. That comes as no surprise to anyone with experience of this kind of case. Mr Bromley-Martin nevertheless suggests that Burnell should have been accorded the same discount as Pettican, who received a 20% discount for his pleas. However, Pettican entered his guilty pleas two weeks before the trial date, following an earlier intimation. In our judgment, the decision of the judge not to depart from the guidance provided by the Sentencing Guidelines Council was permissible. Moreover, there was a basis for distinguishing between Burnell and Pettican in this regard.

(4) Previous good character

58. When passing sentence on Burnell, the judge made no reference to his lack of previous convictions. On the other hand he did make reference to such an absence in relation to three other defendants, albeit with the comment in the case of Fisher that "personal mitigation can count for little when dealing with offences of this gravity". Whilst we think that the judge ought to have referred to Burnell's lack of previous convictions, we are not persuaded that he failed to take it into account or that it was a factor of great value in Burnell's case.

(5) Disparity

59. Mr Bromley-Martin submits that the total sentence passed on Burnell is out of line with those passed on, in particular, Pettican and Fisher. We do not consider that there is anything in this ground of appeal. Whilst Fisher received 14 years' imprisonment for his important involvement in the MDMA conspiracy (with 8 years concurrent in relation to the amphetamine sulphate), it is clear that he received full credit for his early pleas. In other words, the starting point in his case was 21 years. This, in itself, obviates a disparity argument. Pettican, who received a total of 3½ years for his part in the amphetamine sulphate and cannabis conspiracies, was sentenced by reference to a written basis of plea which enabled the judge to describe him as "at the bottom end of these conspiracies". He was also considered to have shown "some contrition". We do not consider that the disparity argument on behalf of Burnell truly compares like with like.
60. Having rejected all these submissions on behalf of Burnell, we finally ask ourselves whether, in his case, the total sentence of 12 years' imprisonment is manifestly excessive. In the course of his submissions, Mr Bromley-Martin made numerous references to Chisholm. However, we do not consider that that authority, which was not a guideline case, tied the hands of the judge in the present case. Once it is accepted that there was no error of principle in the approach of the judge, it seems to us that the sentences were consistent with the guidelines. Although Burnell was not the entrepreneur in these conspiracies, his role was indeed "central and pivotal" and not merely subordinate. The quantities of amphetamine sulphate and cannabis were incontrovertibly vast. The operation was very sophisticated. In our judgment, the judge's total starting point in the region of 13 years was severe but not impermissibly so. Neither of the sentences is manifestly excessive in itself, nor in aggregation do they offend the totality principle. They reflect the seriousness of the criminality. We therefore dismiss Burnell's appeal.

Sangster

61. When passing the sentence of ten years' imprisonment on Sangster, the judge stated that the credit for his guilty plea on the day of the listed trial would be 10 per cent. He acknowledged that Sangster's involvement was limited to one supply on 30 October 2006 at the Golf Club in Oxfordshire, albeit that there had been a preparatory trip in which Sangster had been involved on 21 October.
62. The judge said that, under the direction of Burnell, Sangster

"… became involved in a high level conspiracy, demonstrated by the purity of the cocaine which you carried, 73 to 75 per cent pure, and the sophistication with which the drugs were concealed. Whilst I accept that you did not know the purity of that drug, the reality is that is what you became involved in. This was an enormous quantity of cocaine, almost 2 kilos, 1.4 kilos at 100% purity, with a street value of up to half a million pounds. Supply networks such as this cannot operate without the likes of you; people prepared to act as couriers and drivers."

63. He then referred to the seriously aggravating feature of Sangster's previous convictions, in particular the conviction in 1996 for possession of a Class B drug with intent to supply, for which a sentence of five years' imprisonment had been imposed.
64. Mr Valios QC seeks to make three points in support of his submission that a sentence of ten years was manifestly excessive: (1) insufficient credit for the guilty plea; (2) the subordinate role played by Sangster; and (3) disparity vis-à-vis Jenner.
65. We are wholly unimpressed by the plea discount point. The fact is that Sangster did not change his plea until the day of the trial. Mr Valios tells us that his junior indicated to the Crown in November 2007 that a trial was unlikely but that indication, which came months after first arraignment, was both vague and informal. It is said that re-arraignment would have been sought in November but because of a family problem Sangster decided against such a course for fear that his bail might be withdrawn. In our judgment, the history and the circumstances were not such as to have required the judge to depart from the recommendation of the Sentencing Guidelines Council relating to a plea of guilty entered on the day of trial. The discount of 10 per cent is unassailable.
66. We turn to Sangster's role. The first thing to say is that the judge described it accurately. The question, therefore, is whether he adopted a permissible starting point of approximately11 years, having regard to that role and to Sangster's personal history. In cases involving the importation or supply of Class A drugs, the guideline cases provide that 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 5 kilos or more, sentences of 14 years and upwards are appropriate: Aranguren (1995) 16 Cr App R (S) 211. The 100 per cent purity weight in the present case was 1.4 kilos, almost three times the 500 grammes threshold, but well below the 5 kilos upper threshold. Mr Valios refers to a number of reported cases, not always guideline cases, from which he seeks to draw favourable comparisons. However, the non-guideline cases, which should not be accorded the more elevated status, are not all one way. For example, a sentence of seven years for possession with intent to supply 618 grammes of cocaine at 100% purity by a courier with no relevant previous convictions and following a guilty plea was upheld in Smitheringdale [2005] 1 Cr App R (S) 58. On the face of it, that is not out of line with the sentence of 10 years in the present case where the volume was more than twice as much and there was a highly relevant previous conviction. We are not treating Smitheringdale as a guideline. We simply refer to it to illustrate the proposition that reliance by counsel on fact-sensitive cases which do not purport to lay down guidelines is rarely of great cogency. What the judge did in the present case was to concentrate on the volume of the cocaine and the sophistication of operation and on the previous conviction for what must have been a serious drug trafficking offence. In our judgment, his approach cannot be faulted. He was faithful to the current guidelines. He did not inflate Sangster's role. He adopted a starting point which, although undoubtedly severe, was at or close to the top of the bracket for this offence and this offender. We do not consider it to be manifestly excessive.
67. In these circumstances, can Sangster's sentence of 10 years be said to be vitiated by disparity with Jenner's sentence of 8 years? We are entirely satisfied that it cannot. Although Jenner's guilty plea came at a late stage, it is plain from the judge's sentencing remarks that he had the advantage of previous good character. The judge referred to "the very many reports, certificates and letters", adding:

"It is clear to me that you have made substantial efforts to change your life … Despite your late plea of guilty, you have … shown some real remorse and contrition following your arrest. It is right that I should reflect that to some extent."

68. Thus, Jenner plainly had cogent personal mitigation where Sangster had the seriously aggravating feature of his previous conviction. In our judgment, disparity does not arise.
69. We dismiss Sangster's appeal against sentence.

Jackson

70. Jackson was sentenced by the same judge but on a later occasion. His sentence of eight years' imprisonment for possession of a Class A drug (MDMA) with intent to supply, with three years concurrent for possession of a Class B drug (amphetamine sulphate) with intent to supply, were on the basis of acting as a courier on a single occasion. The judge said:

"You … pleaded guilty at, effectively, the first opportunity. Accordingly, I can give you credit … but that credit is reduced [because] you put forward a basis of plea [which] was withdrawn only yesterday. Had it not been for that you would have been sentenced long ago."

He stated that the criminality involved acting as a courier on a single occasion and added:

"… you went into this with your eyes open, knowing that you were collecting Class A drugs and a very substantial quantity …50,000 ecstasy tablets …

What aggravates matters … is that all this took place whilst you were subject to a suspended sentence for drugs offences and for possession of counterfeit currency … there must be a substantial sentence … particularly because of the very substantial quantity of drugs."

71. In activating the suspended sentence, the judge ordered that 6 of the 9 months be served consecutively to reflect progress made while on remand.
72. In his appropriately restrained submissions, Mr Williams does not suggest that the sentences imposed in relation to the two offences on the current indictment are outwith the guidelines or that the judge fell into error in relation to the reduced discount for the guilty plea or the partial activation of the suspended sentence. Instead, he makes modest observations about the facts - more on the basis of what Jackson did not do than by reference to what he did. The judge correctly described Jackson's role and expressly took into account the fact that the ecstasy tablets were of slightly lower purity than was sometimes found in the cases. Nevertheless, Jackson is a man with a recent relevant conviction (albeit for a far less serious offence) who played a crucial part in the distribution, from a point high up the chain of supply, of almost 50,000 ecstasy tablets and over 9 kilos of amphetamine sulphate (4% purity) for onward delivery to a drug dealer in Wales. We do not consider that the primary sentence of 8 years' imprisonment is manifestly excessive as a reflection of the disclosed criminality or that he can have any complaint about the consecutive sentence. We therefore dismiss his appeal against sentence.

Conclusion

73. It follows from what we have said that we dismiss all these appeals against sentence. It seems to us that the sentences were a justifiably severe response to a sophisticated network of multi-faceted drug trafficking and that they were imposed by a judge with a clear grasp of the respective roles of the several offenders – both those now before us and their accomplices.