England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		5th May 2016

1. LORD JUSTICE McCOMBE: On 18th February 2015, in the Crown Court at Chelmsford before His Honour Judge Lynch, the applicant changed his plea of not guilty to a charge of conspiracy to supply Class A drugs to one of guilty. On 20th May 2015 he was sentenced along with nine of his co-conspirators by His Honour Judge Dodd QC. He was sentenced to eight years and eight months' imprisonment. He now renews his application for leave to appeal against that sentence after refusal of such leave by the single judge.
2. One of the nine co-accused deserves some mention at this stage, this was a man called Nadarajah, who was sentenced to a term of imprisonment of eight years, in contrast to eight years eight months imposed upon this applicant.
3. The case resulted out of a police operation investigating the supply of Class A drugs, specifically cocaine, by an organised group in and around the Home Counties in the period from the autumn of 2013 to May 2014, the applicant being arrested on 15th May 2014.
4. The evidence consisted of a number of observations of the various conspirators in the period which we have mentioned, including the monitoring of telephone calls. This is summarised in the Criminal Appeal Office Summary prepared for this appeal and is not necessary to refer to all of it, but only to some.
5. What emerges is that the applicant had business premises known as the Core Atlantic Recruitment Company in Burnham. The story begins with the police investigating two local drug dealers from Bedfordshire called Dandy and Hester. On 30th October 2013 those two met in a car park in Bedford, and later met one of the co-conspirators, Glencross, who appears regularly in the course of the story. They did so in a lay-by near Stevenage. Glencross then drove to Core Atlantic. He entered carrying an empty bag. The Crown's case was that he was sourcing cocaine from this applicant.
6. There then followed two incidents on 12th and 15th November. On the first of those days the co-defendant, a man called Muncey, was being watched by the police. He drove to the applicant's business and parked in the car park. He made a phone call from his car and the applicant came into the car park to meet him. The applicant opened the boot of the car and put an object taken from his trouser pocket into the boot. Muncey got out of the car and had a conversation with the applicant. He looked in the boot of the car. Muncey then drove away. He was stopped later by police in the Chiswick area of London. A bundle containing a large quantity of bank notes was recovered from the boot. More money was found hidden in the vehicle, about £45,000. The amount found in the boot was £5,000. The money was believed to be connected to drugs as either money to be transported from a particular point to another or in part payment of a fee for Muncey for transporting the money.
7. Telephone evidence showed that the applicant was in contact with Muncey in the days leading up to Muncey's arrest and then attempted to contact him frequently following his arrest when it was not clear that he had reached his final distinction.
8. Three days later, on 15th November, Glencross again visited the rear yard of Core Atlantic and met with the applicant. He handed a half-full carrier bag to this applicant. Telephone evidence showed a large number of calls between Glencross and the Bedfordshire sub-dealers on the day before this meeting. The sub-dealers were subsequently stopped by the police and were found to be in the possession of large quantities of cocaine. It appeared that those sub-dealers sourced their drugs from Glencross, who the Crown said had obtained them from Sofroniou. The detail of all this appears more fully on pages 17A to 18D of the transcript of the Crown opening in the Crown Court; it is not necessary to repeat it.
9. On 22nd November the applicant was seen in the High Street in Burnham, clearly waiting for someone. Later he was seen again in the company of Glencross. The applicant was seen holding something in a box which he did not have when first observed. The two met at the rear of Glencross' vehicle and Glencross then departed.
10. Then, on 10th December, Glencross drove again to Burnham. He met the applicant in a car park. They spoke for a few minutes.
11. On 13th December one of the sub-dealers, a man called Younas, was stopped by police in his car on his way back from Slough. Officers recovered some 995 grams of uncut cocaine at 78 per cent purity with a street value of £155,000 hidden in the car. Telephone evidence showed contact between Glencross, Hester and Younas on 12th November and also contact between Hester and Younas and the co-defendant Matthews on 12th and 13th December.
12. On 17th December the applicant travelled to Glencross' home in Stevenage.
13. On 7th January 2014 the applicant drove a van to Goldsworthy Way in Slough, where he was met by Glencross. After a meeting the applicant walked to Summers Road, where he met Matthews. They walked around Burnham town centre in conversation, then returned to the van before separating.
14. On entering his plea of guilty, the applicant did so on a written basis. It stated this:

a. "1. The Defendant received drugs from Mark Glencross and sold them on to another.

b. 2. The Defendant's involvement in the conspiracy was between November 2013 and January 2014.

c. 3. Many of the interactions referred to by the Crown relate to organising boxing events or were otherwise unconnected to drugs.

d. 4. The Defendant had nothing to do with the £45,930 found in Colin Muncey's vehicle."

15. The applicant is some 37 years old now and had five previous convictions involving 11 offences committed between 1994 and 2007. Significantly, in 2007 he had been sentenced to ten years' imprisonment for five offences of conspiracy to supply drugs of Classes A, B and C, including cocaine. There had also been other offences, mostly of theft. At the time of this offence he was on licence following release from prison from the long sentence that we have mentioned.
16. At the beginning of the sentencing hearing the judge invited all concerned to address him, if so advised, as to any requests that there might be for a Newton hearing. At some stage during that hearing (recorded at page 53C of the transcript), Mr Bowers, for another of the co-accused, raised the point that his client contested some of the matters being alleged. All the others remained silent and the judge said he would hear the matter and deal with it on submissions.
17. In sentencing the applicant, the judge and all concerned proceeded on the basis that the harm category for the purposes of the sentencing guidelines was category 2. The argument in the applicant's case was, and is, as presented succinctly by Mr Wainwright this morning, whether this applicant played a "leading role" or a "significant role" in the offence within the meaning of those terms in the sentencing guideline. For a leading role in such an offence, the guideline suggests a starting point of 11 years' custody, with a sentencing range of nine to 13 years. For a significant role, the guideline suggests a starting point of eight years' custody, with a range of six and a half to ten years.
18. In sentencing the offenders, including this applicant, the judge indicated, in our view somewhat generously, that he would afford full credit for the guilty pleas, and in the applicant's case he indicated that a starting point for sentence was 13 years. Giving full credit, that led to the sentence of eight years and eight months as the final penalty. The judge clearly ascribed a leading role to the applicant and took a starting point at the top of the guideline range.
19. In ascribing the leading role to the applicant, the judge recited the applicant's acceptance of involvement in the crime from November 2013 to January 2014. Thereafter he recited the argument of counsel that the only relevant dates in the applicant's case were on 5th November, 22nd November and 15th January and continued as follows:

a. "... but those dates show in the first two cases Mr Glencross going to your business premises, phone contact, closely related in time, linking to Mr Glencross contacting Younas and Dandy, individuals who were later found in possession of high purity cocaine and who were prosecuted apart from this conspiracy at St Albans Crown Court. The second date revealed to the police at least was simply a meeting between you and Mr Glencross but the third of those dates in January of last year involved you successfully escaping, driving on the face of it dangerously in order to do so, from police who were trying to arrest you following what was plainly, in my view, a drug-related meeting. On the same day there were many phone calls made between you, Messrs Glencross, Nadarajah and a linked defendant, Carey."

20. The judge, in our judgment, clearly did not accept the submission that the three identified dates were the only relevant ones, he was certainly not constrained by the basis of plea to do so.
21. On the present application Mr Wainwright, for the applicant, urges upon us points similar to those that he presented to the learned judge. As we say, in admirably clear and succinct skeleton arguments and submissions, he submits that, having accepted the basis of plea, the judge should have placed the applicant lower in the hierarchy than his co-accused Glencross and Nadarajah. Secondly, he argues that, in view of the reduction in Nadarajah's sentence, owing to his involvement for four months, a similar reduction should have been afforded to this applicant in view of the period of his admitted involvement. Mr Wainwright submits, contrary to the view we have just expressed, that the judge appears to have accepted that the three dates identified were the only ones of relevance. It is argued that by proceeding on the basis that the applicant supplied the man Younas and Dandy via Glencross, the judge failed to adhere to the basis of plea. Again, it is argued that the judge should have placed the applicant lower in the hierarchy than those two.
22. On the second ground it is submitted that Nadarajah was accepted not to have come into the operation until early 2014. The applicant, it is argued, came into the events in November 2013 and was then only active on the three dates. There should therefore, Mr Wainwright submits, have been no differentiation of roles, save that the "only" differences were that the applicant's previous conviction for drug dealing was more recent than that of Nadarajah and the applicant was on licence at the time.
23. With respect to Mr Wainwright, in our judgment none of these points go anywhere. It is clear that the applicant accepted involvement from November 2013 to January 2014. His name cropped up in the evidence on significantly more occasions in that period than in relation to the specific incidents to which Mr Wainwright's argument seeks to confine him. The contacts between him and Glencross were prolific. His bare and unelaborated admission to supplying Glencross not include saying that he did not engage in supply himself. Whether he had anything to do with the money in Muncey's vehicle or not, he had had close dealings with Muncey on the day in question, involving the transfer of something into Muncey's car at the car park at his own business premises. The skeletal and singularly uninformative basis of plea did not require the court to ignore the overall evidence in the case, from which it was entitled to draw sensible inferences. The fact that the applicant was on licence at the time of the offence would on its own have justified the differentiation made between him and Nadarajah in the sentences passed.
24. In dealing with this matter on the papers, the learned judge single said this:

a. "You pleaded guilty to involvement in a major conspiracy to supply cocaine which was closely linked to the importation of large quantities of high quality drugs. This was a conspiracy case, not limited to the supply of individual quantities on particular dates. The judge was fully entitled to find, after a three day sentencing hearing, that you played a leading role in the conspiracy. It was for the court, not the Crown, to determine whether your role fell to be characterised as leading or significant, and the judge's decision was not inconsistent with the facts asserted in your basis of plea as distinct from the conclusions sought to be drawn from those facts. In any event, the Crown made clear the basis of its claim against you in its opening, including that you played a leading role in the conspiracy. The judge's careful sentencing remarks took proper account of the aggravating and mitigating features in your case including your personal mitigation, although as he pointed out this was of relatively limited significance in a case such as this. There is nothing wrong with this sentence, either in itself or in comparison with the sentences received by your co-defendants, or by reference to your basis of plea."

25. With respect, we entirely agree with those remarks and this renewed application is refused.