England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		26 September 2017

1. MR JUSTICE GREEN: The appellant pleaded guilty to two counts of being concerned in the supply of class A drugs. He was sentence to a term of 8 years' imprisonment on both counts to run concurrently.
2. This is an appeal with leave of the single judge.
3. The facts may be summarised briefly. For nearly 12 months the appellant organised a drugs line. During that period the line received up to 70,000 calls related to the supply of class A drugs. The applicant pleaded guilty to the supply of class A drugs and he tendered a basis of plea which was not accepted by the judge. There followed a Newton hearing at the culmination of which the judge made various findings of fact.
4. The appellant gave evidence during that hearing and the hearing lasted approximately half a day. The judge found as a fact that the appellant was in charge of the line. The judge described the operation as "massive scale 3 dealing". Each deal was a street deal. The judge rejected the appellant's evidence that he was a mere telephonist. To the contrary, the judge concluded that he was the organiser and predominant user of the line. The judge rejected the argument that the appellant received a nominal £60 per day for his role in the use of the line. He rejected the argument that the appellant was not close to the original source of the drugs. The inference that the judge drew, which he concluded was overwhelming, was that the appellant was at the centre of a web and played a leading role.
5. In his sentencing remarks, the judge took account of the following principal matters. First, that the appellant was engaged in large-scale street dealing. Second, that he played a leading role. Third, that although he was not a criminal mastermind, he played a central and controlling role organising the buying and selling of drugs on a commercial scale. Fourth, that he had substantial links to others in the chain, including in Turkey, which is a noted hub for the heroin trade, and in Central Africa. The judge in his sentencing remarks stated that he was sure of these findings.
6. The judge took account of the guilty pleas but he was not impressed. He considered that it was a grudging attempt to get away with as little by way of sentence as possible in the face of overwhelming evidence. He also concluded that the appellant showed no remorse nor any understanding or concern as to the effects that his dealing had upon adults. The appellant was not an addict himself, so he could not pray in aid his own addiction by way of mitigation. His motivation was purely financial. The judge considered that any credit otherwise due by reason of the guilty plea was expunged by the "obfuscatory, dishonest and obstructive conduct of the appellant during proceedings". Nonetheless, the judge gave credit which reduced the starting point of eight and a half years to one of eight years. In particular, the judge in his sentencing remarks stated as follows:

"If he had pleaded guilty and admitted being in a leading role the most of sentence which could have been passed, according to the guidelines, is something in the region of a starting point of eight and a half years, that is 102 months, and he would be entitled to a reduction for a plea of about a third of that which would have taken it down to five years and 10 months.

There is no such reduction due in this case. He has gone to every length he can and sought to persuade his lawyers to extend and prolong these proceedings as far as possible by making requests for up to 120,000 pages of other people's phone records. So not only has he shown no remorse, he has done all he can to throw dust in the court's eyes.

So if you had pleaded it would have been a starting point of eight and a half years and a finishing point of about five years and 10 months. That credit insofar as I am concerned, has really exhausted by his obfuscatory, dishonest and obstructive conduct of these proceedings.

I must nonetheless leave some credit behind so the sentence of the court is one of eight years' imprisonment."

7. Mr Collis, on the appellant's behalf, in concise and persuasive submissions argues that the judge gave insufficient credit for the guilty plea and this notwithstanding the judge's findings of fact, which were so fundamentally different to those set out in the basis of plea. He also argues that insufficient credit was given for personal mitigation and that in the circumstances the overall sentence was manifestly excessive.
8. We do not, notwithstanding Mr Collis' attractive arguments, accept them. First, standing back and considering totality in relation to this sentence, we take the view that this could easily have been a category 2A case, bearing in mind the quantities involved. Even if one were to assume generously in the appellant's favour that ten calls were needed to secure a single deal and that each deal was merely a quarter of a gram, that still implies literally thousands of deals over the relevant period and a total supply of class A drugs running into the multiples of kilos. The judge described it as massive dealing. Given the appellant's leading role and the scale and quantity of drugs involved, a sentence in category 2A could imply an 11-year starting point.
9. Second, in relation to the credit given for the plea, we see some force in Mr Collis' arguments that the judge may have overstepped the mark in reducing the credit in the way he that did. But given our view as to totality, this does not, in our view, lead to the sentence being considered to be manifestly excessive.
10. So far as personal mitigation was concerned, the judge was aware of it, he addressed his mind to it, it was not a consideration that he ignored. In our view, it might have led generously to a reduction in the starting point on a category 2A offence by 12 months but that would have been generous.
11. In the circumstances, considering the sentence in the round, we conclude that the judge was within his sentencing discretion to impose it. We therefore reject the appeal.