England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		6th December 2013

1. MR JUSTICE HOLROYDE: These four appellants, together with other defendants, came before the Crown Court at Preston on charges contained in two indictments. The appellant Clifford Hall pleaded not guilty to some of the charges which he faced and was convicted by the jury after a trial. The other appellants pleaded guilty. All four were sentenced on 9th November 2012 by His Honour Judge Woolman. Mr Hall renews his application for leave to appeal against conviction following refusal by the single judge. He and the other appellants all appeal against their sentences by leave of the single judge.
2. The charges in the two indictments arose out of police investigations in Lancashire and Derbyshire into importations of benzocaine totalling 600 kilograms. Benzocaine is not in itself a controlled drug and it has some lawful uses, though the evidence at Mr Hall's trial showed that there could be no legitimate use for the total quantity imported in this case. However, benzocaine in its powder form looks like cocaine, and it is the substance most commonly used by drug dealers in this country to bulk out or cut cocaine powder. Cocaine powder illegally sold on the streets commonly contains somewhere between one per cent and ten per cent cocaine, with the rest being benzocaine or a similar substance. It follows of course that the addition of the benzocaine to the cocaine enables drug dealers to increase their profits very substantially. It is therefore a product of great benefit to drug dealers, who, unsurprisingly, wish to obtain it by means which will minimise their own risks of being detected. Much of the benzocaine used for these criminal purposes comes from China.
3. The prosecution case was that benzocaine was ordered from Mr Hall, and he in turn ordered and acquired it from factories and agents in China. A complicated network of delivery addresses was arranged in order to deflect attention. The contents of the packages arriving from China were misdescribed.
4. The appellants Simon Walsh and his brother, Darryl Walsh, were responsible for setting up delivery networks in two areas: Simon Walsh in Lancashire, Darryl Walsh in Derbyshire. They would arrange the addresses to which the benzocaine could be delivered. They recruited many other persons, including many of their co-accused, to act as delivery and collection men, store men and custodians.
5. Most of the benzocaine arrived from China and was delivered in 25 kilogram barrels. It follows from what we have already said that if used to cut cocaine, such a barrel of benzocaine would result in cocaine with a total weight in excess of 25 kilograms being sold on the streets.
6. In all, the evidence adduced by the prosecution showed that 39 deliveries of benzocaine were made between October 2010 and March 2011, some of which were tracked by the police. The product was sent to various delivery addresses from where it was then collected for onward transportation to its final destination, where it would be used probably to adulterate cocaine. It was impossible for the prosecution to say precisely how many of these deliveries contained benzocaine, but certainly many of them did. Mr Hall admitted that he had imported five 25 kilogram barrels, though the judge in sentencing was sure that in fact Mr Hall had imported and supplied more than that.
7. When Mr Hall's home was searched in March 2011, the police found 19 kilograms of benzocaine. They also found quantities of controlled drugs of Classes B and C. Mr Hall was charged in indictment A, which related to the Lancashire investigation. On 1st August 2012 he pleaded guilty to count 7, possession of 9.8 kilograms of a Class C drug known as MBZP (Methylbenzylpiperazine). He admitted possession of 239 diazempan tablets, a Class C drug, and 187 grams of a Class B drug known as MEC (Methylethylcathinone). He was charged in the indictment before the jury in counts 2 and 3 with possessing those controlled drugs with intent to supply to another. The principal charge against him in count 1 was one of assisting in the supply of Class A drugs contrary to section 46 of the Serious Crime Act 2007.
8. Mr Hall's defence was that he had ordered some benzocaine on behalf of Simon Walsh as part of his normal business and had arranged for its delivery to others as directed. His business involved selling health products and what were referred to as "legal highs", and his case was that he thought the benzocaine was a legal high in itself. He denied that he had any time believed that the benzocaine either could be or was going to be used as a cutting agent for cocaine. He said that in January 2011 he became aware that benzocaine might be used as a cutting agent and that for the first time caused him to have some suspicions, but he said his suspicions were allayed by Simon Walsh, who was known to Mr Hall under a different name. The jury convicted of all three counts. Mr Hall was sentenced to seven years' imprisonment on count 1, with concurrent sentences of two years' imprisonment on each of the other matters.
9. The other appellants were all charged on indictment B, which related to Derbyshire. On 25th June 2012 both the Walsh brothers changed their pleas to pleas of guilty to count 2, which charged them with assisting in the supply of Class A drugs contrary to section 46 of the 2007 Act. Darryl Walsh also pleaded guilty to a count of being concerned in the supply of a Class A drug, namely cocaine, on 28th September 2011. Simon Walsh was sentenced to eight years' imprisonment on count 2. Darryl Walsh was sentenced to seven years' imprisonment on that count, with one year's imprisonment consecutive on the other charge, making the total sentence in his case one of eight years.
10. Benjamin Lawrence pleaded guilty on 4th May 2012 to count 8, a charge of being concerned in the supply of a Class A drug, namely cocaine, on 18th August 2011. He was sentenced to two years' imprisonment.
11. There are two grounds on which Mr Hall renews his application for leave to appeal against conviction. First, it is submitted on his behalf that his convictions are unsafe because he should not have been tried on all three counts together. This argument has been developed before us by Mr Rouch QC, for whose succinct submissions the court is grateful. Mr Rouch concedes that the counts were properly joined in the same indictment and acknowledges that counsel who represented Mr Hall at trial did not make any application for severance. Mr Rouch nonetheless submits that such an application should have been made and that the judge should have severed the indictment so that count 1 was tried separately from counts 2 and 3. He submits that the effect of trying all the charges together was highly prejudicial to Mr Hall, and that the prejudice was increased by the judge's direction to the jury (at page 8E of volume 4 of the transcript) that if they found Mr Hall guilty of one or both of the offences of possession with intent to supply, their conclusion on those charges might affect their view as to whether Mr Hall believed the benzocaine would be used as a cutting agent with cocaine.
12. In support of his arguments, Mr Rouch points to the different nature of the quantities of the drugs involved in the three charges and to the very different issues which the jury had to consider. On count 1 the issue was whether the jury were sure that Mr Hall believed the benzocaine would be used to cut cocaine. On counts 2 and 3 the issue was whether the jury were sure that he intended to supply some or all of the controlled drugs of which he was admittedly in possession. Mr Rouch argued that the jury would be prejudiced in considering the former issue by the evidence relating to the latter. He also pointed out that in the circumstances of this case two separate trials would not have resulted in any significant inconvenience or delay.
13. Attractively though the submissions were made, we are unable to accept them. Mr Rouch was right to concede that the charges were properly joined. We do not accept that Mr Hall was prejudiced or embarrassed in his defence by reason of the charges appearing in the same indictment because, in our judgment, the evidence relating to counts 2 and 3 was admissible in relation to count 1 and would have been so admissible even if counts 2 and 3 had not appeared in the same indictment. As we have noted, the many items recovered by the police from the appellant's home included the drugs which were the subject of counts 2 and 3 and some benzocaine. Mr Hall's case, as we have indicated, was that he was running a legitimate business, and he positively relied on some of the items found at his home as providing support for the existence of that legitimate business. He admitted being a user of various drugs, not including cocaine, but maintained that he never believed that the kilos of benzocaine which he was importing would be used to cut cocaine. In deciding whether the prosecution had proved that he did hold such a belief, it was, in our view, obviously relevant for the jury to know the nature and extent of the appellant's involvement in drugs generally. It follows that in our judgment trial counsel were right to take the view that there was no ground on which they could apply for severance.
14. Secondly, it is submitted that the conviction was unsafe because disputed bad character evidence was introduced by prosecution counsel without any appropriate application having been made. Mr Hall had received a formal police caution on 23rd December 2007 for possession of cocaine. In the course of cross-examination about his admitted drug use, he was asked whether he had used cocaine. When he denied it, he was asked about the caution. It then transpired that although Mr Hall admitted the fact of the caution, he denied that he had used cocaine. His evidence was, in essence, that he had taken the blame when someone else's cocaine was found in a car. Mr Rouch submits that this was a seriously prejudicial irregularity in the trial because it was the only evidence on which the jury might find that the appellant was a cocaine user and must therefore have known that benzocaine was used as a cutting agent.
15. This issue arose in an unfortunate way and we can well understand why defence counsel immediately objected to it. If the prosecution wanted to rely on an allegation of previous cocaine use and on the fact of the caution, they should first have made an appropriate application to the court so that the defence would have an opportunity to object to it. However, as the trial judge indicated, prosecuting counsel had asked the questions in the way he did because of a misunderstanding about what was agreed, and not through deliberate misconduct. Moreover, the judge concluded that if the issue had been raised in advance, he would have permitted the cross-examination.
16. In our judgment, he was entitled to take that view. We tend to agree with Mr Rouch's submission that it would be difficult to describe this aspect of the evidence as being evidence which had to do with the facts of the case and therefore excluded by section 98 of the Criminal Justice Act 2003 from the definition of bad character. We do, however, take the view that the evidence would have been admissible pursuant to section 101(1)(d) of the 2003 Act on the basis that it was bad character evidence admissible through gateway (d) because it was relevant to an important issue between the prosecution and defence, namely the appellant's belief as to the use which would be made of the benzocaine. The judge, as we say, was entitled to reach the conclusion he did and thus Mr Hall in fact suffered no prejudice as a result of the evidence emerging in the way it did.
17. For those reasons we conclude that neither ground of appeal against conviction is arguable. There is no other ground on which it could be suggested that Mr Hall's convictions are unsafe. His renewed application for leave to appeal against conviction therefore fails and is dismissed.
18. We turn to the appeals against sentence. It is appropriate to begin by reading the terms of the charges of offences contrary to section 46 of the Serious Crime Act 2007. In count 1 of indictment A, on which Mr Hall was convicted of such an offence, the particulars were in the following terms:

"... between the 1st day of October 2010 and the 30th day of June 2011, together with others did an act, namely the supplying of benzocaine and/or other chemicals as cutting agents, which act was capable of assisting the commission of one or more offences of supplying class A controlled drugs and/or being concerned in the supply of Class A controlled drugs and they believed that one or more of those offences would be committed, and that their act would assist in the commission of one or more of those offences."

19. In count 2 of the B indictment Darryl and Simon Walsh were charged with others with a similar offence. The particulars in their case were in the following terms:

"... between the 1st day of January and the 31st day of October 2011, together with others did an act, namely the supplying of benzocaine and/or other chemicals as cutting agents, which act was capable of assisting the commission of one or more offences of supplying Class A controlled drugs and/or being concerned in the supply of Class A controlled drugs and they believed that one or more of those offences would be committed, and that their act would assist in the commission of one or more of those offences."

20. The judge in his sentencing remarks said that Mr Hall was familiar with the drugs scene. In the course of his business he was not averse to trading in Class B and C drugs and also trading in the cutting agents to be used with Class A drugs. He was to be sentenced on the basis that Simon Walsh had approached him and ordered the benzocaine, which the judge found Mr Hall believed from the start would be used as a cutting agent for cocaine. However, he was two steps removed from the drug dealers. The quantities that he dealt with were large and he accepted five barrels, which would equate to 125 kilograms. Mr Hall was 31 years old at the time of sentence. He had a few previous convictions for drug possession, but these were not serious, and the judge took account of the character references written on the appellant's behalf. The judge felt that Mr Hall was normally a decent man who should not have allowed himself to be drawn into such serious offending and doubted whether Mr Hall would offend seriously again. Nonetheless, he stood to be sentenced for serious offending and a commensurate sentence had to be imposed.
21. Turning to Simon Walsh, the judge found that he was the overall organiser among the group and although his role would not be categorised as a leading one, it had been very significant. There was a conflict between the basis on which Mr Hall conducted his case and the basis on which Mr Simon Walsh had entered his plea: in a nutshell, each blamed the other. The judge said that in sentencing Simon Walsh he would proceed on the basis that somebody was getting Mr Walsh to organise delivery on their behalf. As the prosecution had acknowledged, there were others above Simon Walsh, but it was clear that he had recruited others and had arranged for the collection and delivery of all the benzocaine consignments. He had done so entirely for profit.
22. Mr Simon Walsh, aged 30, had a drugs conviction in 2004, which the judge fairly regarded as of little relevance. He had been doing community work and there were character references setting out how he had helped others. As the judge noted, the contrast with the damage Simon Walsh had done by committing this offence was stark. In the end, the only mitigation was the guilty plea, entered at a very late stage, for which the judge allowed slightly more than ten per cent credit.
23. Darryl Walsh had entered his plea on the basis that he was asked by his brother to organise deliveries of benzocaine, and that he operated only in the Derbyshire area and only for a limited part of the indictment period. The judge found that Darryl Walsh had also played a significant role, but one which was probably slightly less than that of his brother. He too was an organiser and recruited others and he too was motivated by profit.
24. Mr Darryl Walsh had also pleaded guilty to a separate charge of being concerned in the supply of cocaine. That further offence represented a direct connection with Class A drugs and their supply, for which there had to be a consecutive sentence. It was an isolated act, but Darryl Walsh had a previous conviction in 2006 for supplying Class A drugs for which he had received a sentence of 42 months' imprisonment. He too was entitled to about ten per cent credit on the principal charge, with full credit for his guilty plea on the other charge. His conduct in prison and his work in the community were to his credit, but again the judge observed that stood in contrast to the damage he had done to the community by his offending.
25. Mr Lawrence alone of these appellants was not charged with a section 46 offence. He had pleaded guilty at a stage which entitled him to full credit for that plea to a single offence of being concerned in supplying a Class A drug. He did so on the basis that he had played a lesser role, going on one delivery trip as an escort. The judge accepted that Mr Lawrence came within category 3 of the sentencing guidelines and had had no involvement in the planning of that offence, but had known what he was doing. The judge ordered that the sentence of two years' imprisonment should run consecutively to a sentence which Mr Lawrence was by then serving for another matter. He did not regard the application of the totality principle as calling for any further adjustment of sentence.
26. We can deal with many of the grounds of appeal in general terms before turning to individual defendants. Each of the three appellants who was sentenced for an offence contrary to section 46 of the Serious Crime Act 2007 puts forward a ground of appeal based on a criticism of the manner in which, and the extent to which, the judge drew a parallel with the Sentencing Council's definitive guideline for sentencing for drugs offences. We therefore begin by considering the judge's approach to sentencing for these offences. We note that the single judge granted leave to appeal on the ground that there was a properly arguable case as to how culpability should be measured in a section 46 offence.
27. There is no sentencing guideline directly applicable to offences contrary to section 46 of the 2007 Act. Prior to the sentencing hearing the researches of counsel had not identified any decision of this court which provided guidance as to sentencing for such offences. The judge was therefore without any assistance on this aspect of what was in any event a complex sentencing exercise. At page 5A of his sentencing remarks, the judge indicated his approach:

"In my judgment, it is a question of balance. On the one hand, the sentence has to reflect the mischief done by dealing in benzocaine as a cutting agent, and it is a very substantial mischief because of the value of the product in the hand of drug deals. On the other hand, the sentence cannot be as high as when one is dealing with similar quantities of cocaine, or cocaine mixed with benzocaine, and so it is not a precise science."

28. The judge felt that the sentencing guidelines for drugs offences were of assistance to him. He found that each of the three appellants should be assessed as playing a significant role and he said this:

"It is not a precise science but, in my judgment, after a trial, the appropriate sentence for anybody playing a significant role would be somewhere between 7 and 10 years."

In our judgment, that approach was in no way unfair to the appellants and it cannot be said to have resulted in manifestly excessive sentences.

29. Some months after the judge had sentenced in this case an appeal against sentence came before this court in the case of Watling [2013] 2 Cr App R (S) 37. The offence in that case was one contrary to section 45 of the 2007 Act, but we see no reason why the observations of the court do not apply equally to the offence under section 46. Under both sections the maximum penalty for the offence is the maximum penalty for the anticipated offence. The significance of that provision is shown by this citation from paragraph 13 of the judgment of the court in Watling:

"Parliament has moreover specifically provided that those who assist or encourage, and are guilty of offences under section 44 and 45 of the Act, are liable to the maximum sentence available for the full anticipated offence if it had been committed (see section 58(1) of the Act). It is therefore highly relevant to consider the potential scale of those anticipated offences."

30. It is relevant to note that Mr Watling had admitted importing six 25 kilo barrels of benzocaine which he had knowingly supplied as a cutting agent for cocaine. The evidence in that case was that 150 kilograms of benzocaine could be used to cut cocaine and produce adulterated cocaine with a street value of £9 million or more. The total sentence in Watling's case of 13 years was upheld on appeal.
31. There are of course factual and evidential differences between that case and this, as all counsel have rightly pointed out. The decision in Watling nonetheless confirms that in this case Judge Woolman was not only entitled but was correct to look at the sentencing guideline for the anticipated offences of supplying cocaine. It is important to emphasise what was involved in the offences of which these appellants were convicted: the doing of an act which was capable of assisting in the supply of Class A drugs, and the belief that one or more such offences would be committed and that the act would assist in its commission. When those ingredients of the section 46 offence are proved or admitted, it seems to us that the appropriate sentence generally will not differ significantly, and may perhaps not differ at all, from the sentence which would have been appropriate for the anticipated offence or for conspiracy to commit the anticipated offence.
32. In our view, it is not possible to argue against the judge's finding that Messrs Hall, Walsh and Walsh should each be treated as having played a significant role. It follows that they were to be sentenced for a significant role in providing assistance when they believed that offences would be committed of a kind which cause untold harm to individuals and to society and which would result in huge criminal profits for someone, even if there was no evidence that those profits would accrue to these appellants.
33. The guideline which the judge regarded as appropriate is one which is based on an indicative quantity of 5 kilograms of cocaine. Under the guidelines a high level of purity of the drug is then an aggravating feature. In this case Mr Hall admitted importing five barrels or 125 kilograms of benzocaine. It seems to us that the amount of cocaine likely to be mixed with that quantity of adulterant could well be in excess of 5 kilograms at 100 per cent purity. The judge, in our view, would therefore have been justified in taking a starting point which was higher than he did. It follows that we see no merit in any of the grounds of appeal which are based on criticisms of the judge's approach or on the submission that he took too high a starting point.
34. Next, we emphasise that the judge had very extensive knowledge of this case. He had presided over the early hearings at which various defendants had pleaded guilty to one or more charges. He had heard all of the evidence given at the trial of Mr Hall. He ultimately sentenced a total of 16 persons on these two indictments. He was therefore in the best position to assess the comparative roles and culpability of individual defendants. We have considered carefully the submissions made by counsel today as to various suggested features of disparity between offenders. We are unpersuaded by those submissions.
35. We now can deal briefly with other grounds of appeal mentioned by individual appellants.
36. On Mr Hall's behalf, written grounds of appeal suggested that the uncertainty as to how many barrels of benzocaine had been imported should have been resolved more favourably to Mr Hall. It was submitted that insufficient weight had been given to his mitigation and that his sentence should have been less than those of the Walsh brothers. We have considered those submissions. We do not accept that the sentences in Mr Hall's case were manifestly excessive, either individually or in their total.
37. As to Mr Simon Walsh, the grounds of appeal submit that insufficient weight was given to the basis of his plea and it was submitted that his sentence was unfair by comparison with that imposed on Mr Hall. We disagree. We can find no ground for saying that his sentence was manifestly excessive in length.
38. In Darryl Walsh's case it is submitted that insufficient weight was given to his limited participation for a limited period. It is further submitted that insufficient weight must have been given to the impressive personal mitigation. We have taken all those matters into account, but, even giving them as much weight as we properly can, we are not persuaded that the sentence in his case was manifestly excessive. It should be noted that the judge specifically drew a distinction favourable to Darryl Walsh between him and his brother, but Darryl Walsh also had to be sentenced for an additional offence and Mr Brody, on his behalf, realistically acknowledges that there can be no complaint about the consecutive 12 months for that other offence.
39. In Mr Lawrence's case, it is argued that his sentence was unfair when compared with that of the co-accused Thomas Dormer and that the judge should have made some allowance for totality when ordering that his sentence should run consecutively to the sentence already being served. Again, we have considered the submission but are unpersuaded by it. The judge, as we repeat, was in the best position to assess respective criminality as between the individual defendants.
40. We are grateful to all counsel for the clarity of their submissions, both written and oral. Notwithstanding those submissions, each of these appeals against sentence fails and is dismissed.