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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Wright, R. v [2017] EWCA Crim 126 (07 March 2017)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2017/126.html
Cite as: [2017] EWCA Crim 126
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ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HHJ COOKE
T20157249
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE HOLGATE
and
HIS HONOUR JUDGE GRIFFITHS-JONES
(SITTING AS A JUDGE OF THE CACD)
____________________
| R |
Respondent |
|
- and – |
||
| ANDREW WRIGHT |
Appellant |
____________________
Mr P Lownds (instructed by Hughmans) for the Appellant
Hearing date: 28 February 2017
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Crown Copyright ©
- This is an application for leave to appeal against sentence. On 18 December 2014, at Leeds Crown Court, Andrew Wright pleaded guilty to an offence of conspiracy to contravene s.170(2)(b) of the Customs and Excise Management Act 1979. The conspiracy involved the importation of a very large quantity of cocaine over a period of about 3 months starting in September 2014.
- In due course the case was transferred to the Central Criminal Court to be linked with the cases against Mark Vango, (also known as Dowling) Jamie Williams and others. On 9 February 2016, Wright was sentenced to 19 years imprisonment. Vango was sentenced to 24 years imprisonment for the same conspiracy, with concurrent sentences being imposed for a number of other offences. Williams was sentenced to 23 years imprisonment, comprising 18 years for the conspiracy and other offences and 5 years consecutive on a Firearms Act charge. All those offenders had tendered guilty pleas to the charges against them.
- Wright submitted a basis of plea, in which inter alia he had claimed not to know about the scale and nature of the operation, and that his role was limited to flying containers from Germany to the UK. He claimed he had been paid expenses, rather than significant amounts of money, and that he had become involved in circumstances where he was under threat, falling short of duress. The Crown did not accept those contentions and the matter had been listed for Newton hearing. On the day of that hearing when it became clear that Wright would have to give evidence in support of his contentions, he decided not to maintain his assertions. Accordingly, he was sentenced on a full facts basis.
- On 2 November 2015, Mark Vango pleaded guilty to the same conspiracy to import cocaine, having previously pleaded not guilty. He had about 1 month before pleaded guilty to counts 2, 3, 5, 7 and 9 on the indictment, representing later offending. Vango advanced a basis of plea, which sought to put himself in a significant, rather than a leading role in the conspiracy. The Crown did not accept that, and a Newton hearing was arranged. Some weeks prior to that hearing Vango withdrew his basis of plea, so that he was sentenced on a full facts basis. The term of 24 years on the conspiracy was accompanied by concurrent sentences on counts 2 to 9, including a 10 year sentence for possession of a significant quantity of cocaine with intend to supply.
- The facts show that Wright had a background in aviation and was a qualified pilot. He and his wife set up a company which was used as cover for the drug importations. Wright was arrested on 17 November 2014 after flying from Germany in a single engined Cessna to an airfield near Selby in Yorkshire. Border Force officers went to the aircraft hangar. Wright claimed to have been to Germany to see his sales team in his aerial photography business. Whilst officers searched the aircraft and his Porsche Cayenne 4 x 4 vehicle. Wright was using his mobile to warn others of what had happened.
- Police found cocaine in the boot of the Porsche. When they searched the Cessna they found a case and a holdall containing a total of 30 blocks of cocaine. In all there was 34 kilos in weight. The average purity of the drug was 62%, a high purity. The wholesale value of the drug was £1.36 million. Its street value would have been about £4.24 million. The police also seized electronic and computer equipment, including covert surveillance tracking equipment, covert audio devices and a jammer, mobile phones and paperwork.
- When interviewed, Wright made no comment to all questions. The subsequent investigation showed that Wright had flown on eight separate occasions between 1 September, 2014 and his arrest on 17 November, and that he had carried with him similar quantities of cocaine on each occasion. The total amount of cocaine imported was according to the Crown at least 268 kilos.
- Until 30 September 2014, Wright had the use of a single Cessna light aircraft, but on that day he was able to buy a second Cessna in France, costing him £65,000. During the period of the conspiracy about £115,000 in cash was credited to Andrew Wright's bank account.
- Cell site and ANPR evidence put Williams in the Selby area about 90 minutes after Wright's arrest. He had travelled to Selby from Essex, and returned to Essex that same day. Evidence showed that before Wright came back from Germany, Williams had travelled to mainland Europe. He had probably picked up the drugs in the Netherlands, before taking them by car to Germany where they were loaded onto Wright's airplane. Williams then returned to the UK and drove to Selby in order to pick the drugs up from Wright. Williams role was then to bring the drugs back down to Essex and take them to Vango who was in charge of operations.
- Vango was the organiser, he employed Williams as his trusted lieutenant with Wright as the pilot, a specialist role. On some occasions Vango travelled to Europe, immediately prior to flights made by Wright from Germany. The Crown's case was that he was overseeing the purchase of cocaine before Williams took the drugs to Wright's airplane. On four occasions Vango booked travel for Williams, who had travelled to Europe in the way described on each of the 8 importations, before driving up to Yorkshire to collect the drugs on behalf of Vango. The conspiracy generated very large sums of money in a short time. Records show that at one point the conspirators had almost £2 million at their disposal.
- Neither Williams nor Vango was arrested for several months after the arrest of Wright. That enabled both of them to go on offending, thus leading to the additional counts for which they were sentenced. In January 2015, officers had Williams under observation. He was followed to Pimlico where he handed over a kilo of cocaine to an Asian male in return for £41,000 in cash. There was then a police chase, during the course of which the package of cocaine was discarded and recovered by the police. The drug was at 79% purity. Williams was arrested later that day.
- When his flat was searched the police found a hand gun, with live ammunition for it, as well as a CS Gas aerosol canister. The loft of his premises contained 5 kilograms of cocaine, at 79-87% purity. Its packaging was the same as that covered from the street earlier that day. Williams' DNA was on the holdall in which it was contained. A variety of drug dealing paraphernalia was also recovered, including scales, cutting agents, a vacuum-sealer machine and a ten ton press. £65,000 in cash and £17,000 worth of Euros were also recovered. The street value of the 6 kilograms of cocaine recovered was estimated to be worth about £870,000.
- In May 2015, Vango committed two offences of money-laundering. On the first occasion he handed over £99,950 in cash to another man whose car was stopped, enabling the police to recover the money. The second incident occurred about 10 days later, when Vango handed over £146,000 in cash, which was again recovered by the police.
- On 18th June 2015, Vango was seen supplying nearly 20 kilograms of cannabis to another man. Both men were arrested as a result. Vango's home and that of his mother were searched. At his home police found about 250 grams of cocaine and £10,000 in cash, as well as a ledger which shed light on the workings of the earlier conspiracy. At Vango's mother's home, police recovered about 12 kilograms of cocaine, 20 kilograms of cannabis, £15,000 in cash and a bag-sealing machine.
- The documentation from Vango's home bore both his and Williams' finger prints. It showed that at least 268 kilos of cocaine had been smuggled into the UK. Deducting the cocaine recovered at the time of Wright's arrest this means that at least 234 kilos had been put into circulation in this country. The Crown calculated that Vango was making about £3,300 per kilo imported after expenses and splitting the profit between himself and an unnamed other person. The ledger showed that Vango was paying Wright £1,500 per kilo, and that on at least two of the importations he had paid Williams £12,000 plus expenses for his involvement. He had also paid £12,000 for a car for Williams, and £4,500 for the lease of a property in Yorkshire. The ledger showed a high degree of organisation by Vango in running the operation.
- Vango accepted that he had a leading role in the conspiracy. The Crown in its turn accepted that there was at least one other person above him in the chain of an international conspiracy such as this. However, he was clearly a leading figure in the conspiracy and was the leading figure within this jurisdiction.
- Wright is now aged 53, and has no previous convictions. Williams is aged 39, and has no previous convictions. Vango is aged 44. He has a conviction for violence recorded in 1998 which resulted in a term of imprisonment and which we will disregard for present purposes. More significantly, in 2009 he was convicted in Malaga, Spain for organisation of transportation of cannabis and sentenced to 3 years.
- In Wright's case we have seen a variety of written submissions made by him. They raise a number of matters, including the putting in issue of the number of importations in which he was involved and the total quantity of drugs. It seems to us that those matters go behind the Crown's case as advanced to the judge, after Wright had withdrawn his basis of plea, and are not appropriate to be re-opened before this court. Had Wright wished to raise those matters, they should have been raised and supported by evidence at a Newton hearing. Wright was represented by counsel, who understood that the court would proceed to sentence on a full facts basis. Additionally Wright has raised an issue as to whether he received full credit for his early guilty plea. He complains about disparity between his sentence and that of Vango and Williams, and submits that in any event his sentence was too long. He also relies on personal mitigation.
- We agree with the observation of the judge below that Wright played a crucial and leading role in the conspiracy. True it is that he was not the organiser, and that he would have had no part in the onward distribution of drugs in this country, but his role was absolutely vital in importing the drugs in the first place, and required his specialist skills. He was clearly trusted by those who were sourcing the drugs on the Continent, and had made, and stood to make, very substantial financial gains. The drugs which he had imported on the first 7 consignments would already have done very great harm indeed. In his case the judge took a starting point after trial of 28 years imprisonment. This no doubt was intended to reflect the magnitude of the total importations in this case. The highest category in the Sentencing Council's Importation Guideline, shows a starting point of 14 years for a quantity of 5 kilograms. Clearly this offending was in a very different league indeed. That same guideline indicates that where the quantity of drugs involved is significantly greater than the 5 kilogram indicative amount for a category 1 offence, then sentences of 20 years and upwards will be appropriate. The issue to which we will have to return, is whether the judge's starting point for this appellant's part in the conspiracy and this quantity of drugs was too high up the scale, and particularly when compared with his co-accused.
- As to the complaint about credit for plea, we consider there is no force in it. The appellant had advanced a basis of plea which he resiled from at the last minute when it became clear that he would need to give evidence in support of it. Nonetheless the judge said he would show mercy and grant a full discount for a plea of guilty, so there are no grounds for complaint in that respect. Counsel now instructed has acknowledged that. Turning next to personal mitigation, it is clear that the appellant's previous good character and the tragedy of these events for his family can count for little in an offence of this gravity. As to the other personal mitigation, we have reviewed everything seen by the judge and are satisfied that there is nothing else which could materially affect the sentence.
- We return then to the matters developed before us by Mr Lownds relating to assertions that a 28 year starting point was too high, particularly having regard to this appellant's role and the sentences imposed on his co-accused. As to role, it is submitted that although the appellant demonstrated characteristics of a leading role, he did not satisfy the particular characteristic of directing or organising buying and selling on a commercial scale. It is acknowledged that he was closely linked to Vango and Williams, but not that he had influence over them. It is accepted that he must have had close links to the original source of the cocaine, an expectation of substantial financial gain, and that by using his aircraft company and his skills as a pilot he had used his business as a cover, and abused a position of trust or responsibility. Notwithstanding those features, the argument is that even within the category of leading role, there may be gradations. Where this appellant did not influence others or direct or organise the buying of the drug, he should be viewed in a lesser light certainly than Vango, who did fulfil those functions.
- His case was also contrasted with that of Williams in that Williams was directly involved with transportation of the drugs on the Continent and within the UK, and by the fact that he was identified as Vango's trusted lieutenant. This appellant's role whilst crucial was not involved with the acquisition of the drug, nor its distribution in this country. For those reasons the judge had opted for too high a starting point. In addition it is pointed out that Vango had a previous conviction involving drugs, whereas this appellant was of good character. Moreover, both Vango and Williams had continued to be involved in serious drug related activities after this conspiracy had come to an end.
- We think there is some force in these submissions. The judge took a starting point of 32 years in Vango's case to cover all of the activities for which he was to be sentenced. The starting point of 28 years in Wright's case, did not in our judgment sufficiently reflect the differences between them, which include Vango's greater role in the conspiracy, his other serious offending, and his previous conviction.
- Williams' starting point for the conspiracy was put at 25 years, increased to 27 years to reflect the other drug supply offending. Had that other drug offending stood on its own, it would have been a category 1 offence, attracting a starting point of 14 years. That 27 year sentence was reduced to 18 years, to reflect full credit for plea, but then increased by a consecutive term of 5 years, to represent the Firearms Act offence.
- Leaving aside the Firearms Act offence, we consider again that there is a justifiable complaint that this appellant was dealt with too harshly in comparison with Williams for the drug related offending. It is hard to see why Wright was dealt with more severely for the conspiracy than Williams was both for involvement in the conspiracy and subsequent drug-related offences, even recognising that Wright was better paid.
- We are persuaded therefore, that the sentence imposed on Wright was in the circumstances too long. We think that a term of 24 years as a starting point was appropriate. We are prepared to maintain the same level of discount as granted by the judge below for a guilty plea, notwithstanding, as the judge himself recognised, that this may have been somewhat generous in the circumstances. The result is that we grant leave and allow the appeal by substituting a term of 16 years imprisonment for the 19 years imposed below.
LORD JUSTICE TREACY: