England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT PRESTON
HHJ NEWELL
T20107189

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/07/2012

Lord Justice Hooper :

1. On 15 October 2010 in the Crown Court at Preston the appellant, aged 48 at the time of sentence, pleaded guilty to conspiracy to supply a class B controlled drug, namely amphetamine. On 17 December 2010 he was sentenced to 18 months' imprisonment. He pleaded guilty following a rejection by HHJ Newell of his application that the prosecution against him should be stayed as an abuse of the process of the court given what had occurred in July 2009.
2. This sentence of 18 month' imprisonment was ordered to run consecutively to the sentence of six years' imprisonment which he was already serving for a substantive offence of possession of amphetamine with intent to supply, an offence which had been committed on 6 April 2009.
3. On that day West Yorkshire police officers stopped the appellant in his car which was being driven eastbound on the M62 in Yorkshire. The car was searched and two large boxes, which were found to contain a total of 49 kilos of amphetamine at 22% purity, with a street value of between £363,000 and £496,000 were recovered. Unknown to the appellant at the time, his car had been stopped as part of an ongoing criminal investigation by Lancashire Constabulary's Serious and Organised Crime Unit into the criminal activities of a known drug dealer, Martin Day, and his associates who were based in the East Lancashire area. The investigation was to reveal a highly organised crime group involved in the wholesale acquisition and distribution of industrial quantities of controlled drugs, including cocaine, amphetamine and cannabis. Another man, Ian Brennan, was a major distributor of amphetamine in the area of Doncaster and Nottingham. He employed the appellant Dawson and another person to deliver cash in payment for, and collect consignments of, amphetamine from East Lancashire.
4. On 6 July 2009 the appellant entered a plea of guilty to possession of the 49 kilos with intent to supply with a basis of plea which read:

"I was heavily in debt;

To repay my debt I agreed to transport a quantity of class B drugs;

I was told that the drugs were class B and no more than 5 kilograms."

5. He pleaded not guilty to a second count which charged him with simple possession of a small amount of cannabis.
6. The prosecution was told about the basis of plea on 6 July 2009.
7. On 31 July the prosecution told the court, according to the court log:

"Pleas acceptable to Crown. Offer no evidence on count 2."

8. On the same day the appellant was sentenced to eight years' imprisonment reduced to six years' on appeal.
9. Both the appellant and the Lancashire Police (although not necessarily the West Yorkshire Police) knew that the basis of plea understated the appellant's involvement. It is sufficient to say that there was evidence at that time of a greater involvement than one delivery and further work by the Lancashire Police after the appellant had been sentenced showed further involvement by him. That led to the appellant being arrested in early 2010 at a time when a large number of other persons were arrested and the investigation largely brought to an end.
10. The appellant was then charged with the conspiracy to supply amphetamine.
11. The prosecution's case at the time of the application to HHJ Newell for a stay was that there were previous drug deliveries on 16 March 2009, 21 March 2009, 27 March 2009, 1 April 2009 as well as the delivery on 6 April 2009 in relation to which the appellant had pleaded guilty in July 2009. If there had been a trial, Mr Pickup, for the prosecution, was proposing to make an application to introduce into evidence the 6 April delivery as an overt act of the conspiracy. We were told that the prosecution later modified its case to allege 9 deliveries in all.
12. The thrust of the argument made by Mr Purcell (as it developed during the course of oral argument) was that the prosecution had accepted in court on 31 July 2009 that the delivery made on 6 April was the only delivery made at that time by the appellant and that it would be an abuse of process to now allege further deliveries. Assuming for the purposes only of argument that it could be an abuse of process to charge a person with a count or counts reflecting multiple deliveries after earlier accepting that he had made only one delivery, that is not what happened here. The prosecution did not say anything to the effect that there was only one delivery. The basis of plea does not state clearly that the appellant was accepting only one delivery, even though he may well have been hoping that he would be sentenced on the (false) basis that this was a one off delivery and that he was not otherwise involved with drugs. Whilst the prosecution did not contest the basis of plea, they did not tell the judge that the appellant should be sentenced on the basis that his only involvement was one delivery.
13. In the light of this conclusion it is not necessary to examine how much was known to the prosecution at the time of sentence on July 31 2009 and to what extent, if any, the desire of the officers conducting the investigation into major drug trafficking not to reveal their hands too early, would be a relevant factor.
14. The appellant (who had previous convictions for drug trafficking) also seeks to renew his application for leave to appeal the consecutive sentence of 18 month's imprisonment for the conspiracy following refusal by the single judge. HHJ Newell sentenced the appellant on the basis (contested by the prosecution) that he had been involved as a courier in only four deliveries as well as the delivery on 6 April 2009. The judge took the view that, had the appellant been sentenced for the conspiracy in July 2009 the proper sentence would have been one of seven and a half years' imprisonment (bearing in mind the earlier successful appeal). We agree and the renewed application for leave to appeal sentence is refused.