England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		13th July 2017

LORD JUSTICE TREACY:

1. These two cases are unrelated, but they have been listed together so that the court may consider a feature of the offending which is common to both. The feature is known as "cuckooing". Sometimes it is known as "running county lines". The phenomenon represents a development or adaptation in the drug supply market. This is unsurprising as markets inevitably adapt and mutate with time. It appears to have emerged since the publication of the Sentencing Council's Drug Offences Guideline in February 2012 and is not the subject of explicit reference there. This judgment considers how cuckooing should be addressed by sentencing judges.
2. In general terms, cuckooing refers to retail drug dealers from large metropolitan centres who travel to a smaller provincial community to sell drugs and who set themselves up in premises locally from which they will operate. Very frequently, they will latch onto a local dealer and take over his network, or onto a local user, and take over his address as a base for operations. Sometimes it is a combination of the two. Often large supplies of the drug will not be maintained in the provincial centre, but will be the subject of a re-supply operation from the metropolitan base. Sometimes a manager will be placed in the local area to run operations. Sometimes, as in the case of Limby, young people will be sent or taken to a local centre with sufficient supplies to make inroads into local networks. They may often be lightly convicted or unconvicted.
3. This phenomenon attracted some comment from the National Crime Agency in its National Strategic Assessment of Serious and Organised Crime 2016, at paragraph 128, which states:

"Urban Street Gangs (USGs) continue to play an important role in the distribution of Class A drugs (heroin and crack cocaine) into county and coastal towns outside the major big cities where they normally operate. In these scenarios, groups from large cities are taking control of local markets outside the city, supplying high-frequency deliveries of mid-market quantities. This form of criminality almost always involves the exploitation of children and vulnerable adults coerced to assist with accommodation and supply."

4. Cuckooing may involve a number of variants in its operation, but ought to be recognisable by practitioners and judges from the general descriptions given above. We understand that the term is well understood in courts around the country. The attraction for those who move in is not merely the potential consumer base, but also reduced opposition from local dealers, who find themselves supplanted by incomers who take over local premises from which to operate, often occupied by a vulnerable, low-level user or dealer. An additional benefit is the perception of increased anonymity since such offenders will be operating away from their home areas.
5. The practice of cuckooing is commonly achieved by exploiting local drug users, either by paying them in drugs, or by building up drug debt, or by the use of threats and/or violence to coerce. The exploitation and use of young people as couriers of drugs or money, or as minders of drugs and money, as well as salespeople, is not uncommon. See the National Crime Agency's NCA Intelligence Assessment, published on 12^th August 2015.
6. Neither of the two cases before us appears on the evidence to involve a person or persons organising such an operation from the metropolitan centre. Such a person would appear clearly to fall within a leading role in the drug supply guideline. It may be, however, that a person who does not operate at that level, but who operates as a local manager or enforcer of a drug supply operation of this sort, will also fall within a leading role within the guideline. Judges will need to consider carefully the evidence placed before them, considering such factors consistent with a leading role as expectation of substantial financial gain, substantial links to, and influence on, others in the chain, and directing or organising buying and selling on a commercial scale.
7. Those who do not fall within a leading role, but who are involved in the process of cuckooing will ordinarily fall into a significant role. Where there is evidence of involvement of others in the operation by pressure, influence, intimidation or reward, that should be given particular weight in the assessment of culpability and in determining whether a move upward from the starting point is appropriate. This particular type of offending carries with it the hallmarks of professional crime above and beyond that in ordinary street dealing, so that judges should pay particularly close attention to the assessment of role and the offender's place within a category range. Equally, those who work within such an operation and who seek to have a lesser role ascribed to them, should expect to have those claims (based, for example, on coercion or lack of awareness of the scale of the operation) examined with care.
8. None of these observations should be construed as tolerating or downgrading an approach to traditional forms of local street dealing. That remains a pernicious crime, seriously damaging individuals and society, and should continue to be recognised as such. However, the added sophistication of cuckooing operations reflects a further degree of criminality, which judges should be astute to recognise, and to reflect in a particularly careful examination of the three roles by which culpability in drug supply offending is assessed.
9. None of this is to encourage a departure from the guideline. What is required is a careful focus on the evidence and on the terms of the guideline so that an appropriate categorisation of an offence or offences is achieved. If the offence before the court clearly establishes a cuckooing operation, the court should reflect that, where appropriate, in the assessment of role or by treating it as an aggravating feature at step 2 of the guideline. It may also, if the evidence supports such a conclusion, operate so as to mitigate the position of a vulnerable recruit who has clearly been exploited. The position of the co-accused, Prior, in the case of Ajayi is an example. The court should be alive to the dangers of double counting and the sentence should remain just and proportionate. Considerations of prevalence in a locality will only arise if the conditions identified in R v Bondzie [2016] EWCA Crim 552, [2016] 2 Cr App R(S) 28, are established.
10. We now move to the individual cases.
11. The applicant Ajayi was convicted in the Crown Court at Ipswich on 19^th January 2017 of two counts of offering to supply heroin, two counts of offering to supply cocaine, and two counts of possession of, respectively, heroin and cocaine, with intent to supply. On the same day, the judge passed concurrent sentences of six and a half years' imprisonment on each count. There was a further count alleging possession of cannabis, which had been admitted, attracting a concurrent one month sentence.
12. The applicant lived in Dagenham, East London. He was arrested at the home of a man called Sam Prior in Leiston, a Suffolk coastal town, about a hundred miles from London. Prior was a younger man and a vulnerable heroin addict whom Ajayi had persuaded to allow him the use of his premises as a base for dealing in return for drugs. Prior gave evidence for the Crown at Ajayi's trial and said that he had felt preyed on and intimidated.
13. When the police searched the premises they found 81 wraps of crack cocaine and two wraps of heroin, along with a small quantity of cannabis. A lock-knife was found down the side of the sofa on which the applicant had been sitting, and enquiries revealed that he had travelled between London and Suffolk in the stolen car. The events of the day of arrest, 22^nd January 2016, were reflected in counts 5 and 6.
14. Other counts were evidenced by an examination of Ajayi's phone. Counts 1 and 2 reflected texts over a period of about three months, during which the applicant, whilst in the Dagenham area, had been offering heroin and cocaine on a regular basis.
15. The phone also provided evidence of about five journeys from Dagenham to Leiston, in order to offer and supply both types of Class A drugs. This activity was reflected in counts 3 and 4.
16. Ajayi is aged 28. He had no previous convictions for drug supply, but was convicted in 2011 of causing grievous bodily harm with intent, for which he received six years' imprisonment after a guilty plea.
17. The grounds of appeal submit that the sentence was too long. Complaint is made that the judge made reference in sentencing remarks to the use of a stolen car and the presence of the lock-knife. However, a consideration of those remarks shows that these had no real impact on sentence, and that what the judge was focusing on was the nature of the applicant's drug supply offences.
18. It was also submitted that the judgment of this court in R v Bondzie [2016] 2 Cr App R (S) 28 should give some sort of guidance as to the appropriate level of sentence. We are not impressed by that argument. Bondzie is not a guideline case on sentence levels; it gives guidance on prevalence. The Sentencing Council's Guideline dictates the approach to sentence, and the outcome in Bondzie merely represents an application of the guideline to the particular facts of that case. The facts in the present case are clearly distinguishable from those in Bondzie. Furthermore, we reject a submission that it is implicit in this case that the judge sentenced on the basis of prevalence. At no stage in his remarks did the judge refer to the question of prevalence. What he did do was observe that the starting point in the guideline of four and a half years' custody relates to a single offence, whereas here there were three pairs of offences reflecting offending which had taken place in different situations over a three month period.
19. There remains the submission that, in any event, the sentence was too long. As we have already noted, the court is not concerned here with a single offence, but rather a series of offences. Two of them relate to the applicant's own drugs operation in London, taking place over a period of three months. Two of them relate to a number of visits to Leiston for the purpose of drug dealing in the weeks prior to the final pair of offences; and the final pair represents the day of arrest. Ajayi was clearly a commercial operator. We note also that the judge referred to the fact that Ajayi was not a drug user.
20. The text messages recovered show a preparedness to deal in two types of Class A drugs, advertising high quality and quick service, with "big sizes of both". In addition, there is the cuckooing factor which requires the court carefully to scrutinise the offender's role. The case appears to fall within Category 3 by reason of street-dealing. As to culpability, the case would appear to fall towards the upper end of a significant role, by reason of fulfilling a number of the role characteristics, and in particular with the involvement of Prior by pressure, intimidation or reward. Prior pleaded guilty to a total of four drug supply offences and was made the subject of an 18 months suspended sentence, reflecting his place in the scheme of things in the assessment of the court below.
21. The relevant guideline shows a starting point of four years and six months' custody, but with a range from three years and six months to seven years' custody. Given the circumstances of this applicant's offending, no possible complaint can be made about a sentence at the upper end of the range after a trial. Accordingly, this application is refused.
22. We now turn to the case of Limby. This applicant, having pleaded guilty on an earlier occasion, was sentenced on two counts of possessing Class A drugs, cocaine and heroin, with intent, on 25^th November 2016 in the Crown Court at Portsmouth. He was sentenced to concurrent two-year Detention and Training Orders. A co-accused, Tadele, who is not before the court, also admitted two similar counts and was sentenced to a two-year Detention and Training Order.
23. Both offenders were young. The applicant Limby was 17 years and 3 months at the time of the offences. Tadele was of a similar age.
24. The facts show that police on patrol in Portsmouth in March 2016 saw a group which was clearly involved in a drug transaction. They recovered some heroin and then went to search the home of one of the group. When they arrived at the property, they found this applicant and Tadele. The pair come from the London area and have no links whatsoever to Portsmouth. When the applicant was searched, he had 59 wraps of cocaine and 64 wraps of heroin on him, with an approximate value of £1200. He was also in possession of £600 cash. Tadele was in possession of 150 wraps of heroin and 151 wraps of cocaine, with a value put at £3,000. The Crown's case was that the pair had travelled together to Portsmouth from London in order to sell drugs.
25. Limby entered a basis of plea, which stated:

"I was driven to the area. I had never been to Portsmouth. I was only there as I owed money to an older person. He said I had to do this and he is not someone I could say not to. He left me in the house. I would not have expected to receive any money for doing it, just reducing my debt."

26. Limby was still aged 17 at the time of sentence. The sentencing judge recognised that the Sentencing Council's guideline for sentencing youths applied. She expressly stated that it was for the court to have regard to factors such as the welfare of the applicant, and the prevention of further offending.
27. Limby has a significant record of convictions. Between 2012 and 2016, excluding the present matters, he was convicted of some 18 offences. They include an offence of robbery, two offences of battery, three offences of possession of or threats with an offensive weapon, four offences of breach of a Criminal Behaviour Order, and two other offences involving failures to comply with a court order, as well as three offences of possession of Class B drugs.
28. A pre-sentence report stated that the applicant had been involved in gang activity and was associated with those involved in serious offending. He had lost the sight of his left eye in an acid attack in December 2015, and as a consequence suffered from post-traumatic stress disorder, for which he has received regular counselling. The applicant told the probation officer that he had been involved in gang activity, and that, having lost something worth £2,000 belonging to an older associate, (as to which he declined to go into more specific detail), he was intimidated into working off the debt thereby incurred. He said that it was this that had led him into the present offending. He had been driven to Portsmouth and told what to do.
29. Whilst in the house to which he had been taken, he had been told to hold on to the drugs and cash which had been found in his possession, the cash being the proceeds of selling drugs from the house. The Criminal Behaviour Order to which the applicant was subject at the time derived from his gang associations. The author of the pre-sentence report expressed some concern that the applicant's mental health appeared to have declined. A Youth Rehabilitation Order was proposed, notwithstanding the failure of a previous such order.
30. We have had a report from the place where the applicant is in custody. There have been a number of adjudications for assaults on inmates or staff, and for possession of a sharpened plastic knife. In more recent times, the applicant's behaviour appears to have improved, and he has been working with the health and wellbeing team in dealing with his mental health problems.
31. The grounds of appeal urge that in this applicant's case, insufficient regard was paid to the diagnosis of post-traumatic stress disorder and the applicant's mental health difficulties. In addition, the author of the report had spoken of the applicant's mental health problems as a factor which led him to be deemed vulnerable. Overall, it was submitted that insufficient consideration was given to a further Youth Rehabilitation Order, accompanied by intensive supervision and surveillance; alternatively, that if custody was necessary, it should have been for a shorter term than that imposed.
32. We have taken note of this applicant's significant criminal record and of the observation of the author of the pre-sentence report that, apart from custodial sentences and fines, the applicant has never complied with any court order. In our judgment, given the nature of this offending, which this applicant clearly knew was unlawful and harmful, and given his previous record and his previous lack of response to a series of non-custodial attempts to divert him from criminal activity, the judge was wholly justified in passing an immediate custodial sentence.
33. The case falls into Category 3, as it involves street-dealing. Added focus is required in assessing role, given that this is a cuckooing operation. The judge placed this offender in a significant role. We have some concern about that, given this applicant's age and that what he was employed to do was clearly at the behest of someone else operating within a gang context. We bear in mind that this applicant has, over a number of years, involved himself in gang activity, but nonetheless we consider that what he did on this occasion has the hallmarks of pressure or coercion behind it. His basis of plea to that general effect was not challenged. In our judgment, therefore, a lesser role was appropriate, but with upward movement to reflect this applicant's previous criminal record and also the fact that his involvement in this matter arose from his own clearly criminal associations. For an adult in this role a sentence of about four years' custody would be appropriate, after a trial, but before credit for mitigation and a guilty plea. In this applicant's case, the mitigation consists of his youth and his mental difficulties. Thereafter, full credit is due for a guilty plea. Making appropriate allowance for all those factors, we are not persuaded that a final sentence of a two-year Detention and Training Order was manifestly excessive, or arguably so.
34. Accordingly, this applicant's application is also refused.
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