REGINA v "K" [2002] EWCA Crim 927

IN THE COURT OF APPEAL
CRIMINAL DIVISION
[2002] EWCA Crim 927Case No No: 199803527 X4Venue Royal Courts of, Justice, Strand,, London WC2
Between
REGINA"K"
Before
Lord Justice LathamMr Justice GoldringHis Honour Judge StokesMR G PARKINS QC & MR A HALL QC appeared on behalf of theappellantMR J BLACK QC appeared on behalf of the CrownDate 12 April 2002
[1]On February 19, 1998 at the Crown Court at Woolwich this appellant pleaded guilty on the eighth day of his trial to conspiracy to supply heroin. On 27th April 1998 he was sentenced to 26 years' imprisonment. Sentenced with him were three other conspirators: Esat Kaan - who was convicted by the jury and sentenced to 22 years' imprisonment; Izzigil - who was convicted of the conspiracy, and also one count of assisting in the retention of benefit from drug trafficking and one count of failing to disclose information relating to the laundering of money and the proceeds of drug trafficking, and was sentenced to a total of 18 years' imprisonment; and Onbasi - who was convicted of the conspiracy and sentenced to 20 years' imprisonment.[2]The offences with which the conspirators were charged came to light as a result of a surveillance operation by the police, particularly on 1st and 2nd April 1996. They were keeping watch on two premises in Tottenham, North London. One was 10 Burleigh Court, which had been rented on 1st April 1996 by a co-conspirator, Ozakan, and 20A Fairbourne Road, which had been rented previously by Ozakan on 20th January 1996. They also kept observation on three cars, a BMW car belonging to the appellant Onbasi, a Nissan car belonging to Dervis Sehitoglu and a Honda car.[3]On 1st April the only significant event was that Sehitoglu and Onbasi went to 20A Fairbourne Road where they were joined by Ozakan and a man, Kuni, who had been charged as a co-conspirator but who had fled out of the jurisdiction to the Turkish Republic of North Cyprus and has not, to the knowledge of the authorities, returned to this country.[4]On 2nd April the police saw two holdalls being taken to 10 Burleigh Court. The first was taken in by Sehitoglu from the boot of the Nissan driven by Ozakan. They both entered and then left the premises. Later the Nissan returned and the second holdall was taken into the premises by Ozakan from the car's boot. Again both went into the premises. Meanwhile Kuni was seen driving the Honda in the area. Sehitoglu and Ozakan were arrested as they left the premises. Sehitoglu had £1,253 in cash on him and keys, including those of 20A Fairbourne Road. When asked about the holdall, he said the man in the Honda told him to carry it. Ozakan had on him the tenancy agreement for 10 Burleigh Court and a gas bill for 28 Fairbourne Road. The Nissan was searched and a plastic carrier bag containing 9.1 grams of heroin was found. 10 Burleigh Court was searched and the two holdalls were found concealed in the bases of two beds in the main bedroom. In them were respectively 25 packages and 33 packages containing a total of 44 kilograms of compressed heroin to a value in excess of £7 million. £28,890 in cash was found behind the bath panel in the premises. Officers then searched 20A Fairbourne Road. Hydraulic compressing machinery, two moulds, a split tyre and a food mixer all contaminated with heroin were found, and other items were discovered which bore traces of heroin. While the police were in the premises Kuni and Onbasi approached the premises but realised that the police were there and fled. They were subsequently arrested.[5]As a result of what was found at both premises and on Sehitoglu and Ozakan other premises were raided where documents were discovered which clearly related to heroin dealing.[6]On 4th April the BMW belonging to Onbasi was found and searched and contained a small foil package containing heroin. On 24th April 1996 police searched 19 Darwin Road as a result of information received, where they found 12 sealed packages of heroin, which on forensic examination showed characteristics similar to heroin found at 10 Burleigh Court.[7]Sehitoglu, Ozakan, Kuna and Onbasi were charged with conspiracy to supply heroin based on this evidence. Sehitoglu and Ozakan both pleaded guilty. As we have said, Kuna absconded. At their trial in October 1997 Sehitoglu was sentenced to 15 years' imprisonment, which was reduced later on appeal to 8 years' imprisonment for reasons which will become apparent. Ozakan was sentenced to 25 years' imprisonment, which was reduced to 18 years' imprisonment on his plea of guilty. Onbasi did not plead guilty and was still awaiting trial when other conspirators, including this appellant, were arrested, and eventually his case was dealt with together with them.[8]Returning to Sehitoglu, he not only pleaded guilty but indicated that he was prepared to provide information to the police and agreed to give evidence, which indeed he did at the trial of this appellant; and his statement formed part of the prosecution material. It was apparent from the information that he provided that the conspiracy was substantially wider in scope than the deliveries of heroin which the police had discovered as a result of their surveillance. His account was that at least from November 1995 heroin was being imported to this country by this appellant, who was the main provider of heroin in the sense that he was the person who sourced it and arranged its importation. Kuni would appear to have been in charge of the disposal of the heroin. The amounts were substantial. Whatever may have been the original scale of importation, which Sehitoglu said was up to 15 to 20 kilograms per fortnight from Turkey, by April 1996 deliveries would appear to have been at the rate of at least 80 kilograms per week. Indeed, at one stage Sehitoglu said that they had been receiving consignments of 100 to 150 kilograms at a time. The drugs from Turkey would be offloaded from lorries into cars and taken to streets in the Wood Green area where they would then be collected. In addition, drugs were imported by cars from Hungary approximately once a month, 20 kilograms a time, which were collected from garages behind the address of another conspirator. The scale of the conspiracy was therefore substantial. Indeed, the amounts of heroin that were imported into this country were massive. They involved heroin worth well in excess of a hundred million pounds.

The judge, when sentencing this appellant, said as follows:

"Now, UK, I am quite satisfied you were the head of this organisation in the United Kingdom and that you managed it, controlled it and directed it with Cooney (sic) as your partner, top aid and assistant. I take into account your previous good character and your plea of guilty as an indication of contrition and remorse. Because this is in the very highest category of drug trafficking offences the minimum sentence which I regard as appropriate in your case is one of thirty years. I reduce that by four years because of your plea of guilty and your previous good character. In your case the sentence is one of twenty-six years."
[10]Before us today Mr Parkins, on behalf of this appellant, has submitted that that sentence was excessive. The grounds of appeal fall into two parts. The first part is that it is submitted that the judge started with too high a starting point in taking 30 years as the base figure from which to deduct any appropriate period to reflect credit for the plea of guilty. It is submitted that a sentence of 30 years' imprisonment should essentially be reserved only for those cases of the maximum severity where the offender can be said to require a sentence which deters others on the basis that the offence itself falls into the most serious category requiring such a severe sentence for the protection of the public. He further submits that, as far as this appellant was concerned, that starting point failed to reflect the fact that there were outside this country people who were in one sense more involved in the heroin trade, that is the suppliers in Turkey, and that it failed to reflect the fact that he was not involved for the whole of the period over which the conspiracy was charged. In those circumstances, together with the plea of guilty, the judge erred in sentencing him to 26 years' imprisonment.[11]It seems to us that the sentences for this particular conspiracy were put into an appropriate bracket by this court when it considered the appeals of Sehitoglu and Ozakan. There is no doubt that they fell into a category within the conspiracy which was lower down the scale than the appellant. They were essential aids, there is no doubt, but nonetheless they were not, as this appellant was, clearly at the head of the conspiracy in this country.[12]In the decision of the court in the appeal of Sehitoglu and Ozakan [1998] 1 Cr App R (S), [1997] EWCA Crim 1088 , at page 89 the court considered that the appropriate starting point for sentence for those two appellants was 24 years' imprisonment after a trial. In the case of Sehitoglu that was reduced to 8 years' imprisonment to reflect the fact that the assistance that he gave to the prosecution was significantly greater than the judge at the trial could have anticipated. The judge at the trial had been made aware that that appellant was prepared to give assistance, but by the time that he sentenced him he was not aware of the extent of that assistance and the effect that it would have on the trial of this appellant and his co-conspirators. The sentence on Ozakan was reduced to 18 years in order to give appropriate credit for the plea of guilty which the court considered had not been adequately reflected in the original sentence of the judge.[13]If one therefore takes as the appropriate level of sentencing that which this court decided was appropriate for Sehitoglu and Ozakan, it seems to us that the learned judge, in sentencing this appellant, identified properly the appropriate starting point to reflect his comparative position in the conspiracy. It follows that, in our judgment, the judge was entitled to take 30 years' imprisonment as the starting point.[14]As far as the appellant's position in the conspiracy was concerned, we do not consider that the matters which have been put to us, if we may say so attractively and helpfully by Mr Parkins, affect that conclusion. The judge, in our judgment, was right to place it at the head of the pyramid of the conspiracy in this country, and that justified the starting point for the sentence which he took.[15]In our judgment, the credit that he gave of four years, albeit less than full credit for a plea of guilty, properly reflected the fact that this appellant did not plead guilty until the eighth day of the trial. We take into account the fact that, as submitted by Mr Parkins, that plea was triggered by production of further documentary evidence which, on consideration, the appellant appreciated established without doubt his guilt. But the purpose of the credit for a plea of guilty is not merely to reflect the understanding of a defendant that conviction is now inevitable; it also is to give credit for an appellant who has not only appreciated that there is evidence against him, but is prepared to accept his wrongdoing and by a plea of guilty show some remorse.[16]In those circumstances, it seems to us that the credit given by the judge was appropriate in the circumstances of this case to the circumstances in which the plea of guilty was ultimately tendered.[17]That leaves the second basis upon which the appellant seeks to persuade this court that the sentence was wrong in principle or excessive.[18]The appellant himself has indicated that he was prepared to assist. The information that we have makes it clear that no such assistance was given to the authorities until after the appellant had been sentenced. That was the appellant's own decision. It follows that there was no submission made to the judge that any credit should be given to the appellant by reason of assistance that he might be able to give to the authorities. That was, as we have said, a deliberate decision taken by him and his legal advisors and after a careful consideration of the position. We fully understand why that might have been considered an appropriate course. However, it must follow that as far as this court is concerned there can be nothing which this court can criticise about the sentence which was imposed by the judge on the material before him. On the basis that this court is a reviewing court, it would normally follow that this court could not interfere with the sentence that was passed on the basis of matters which postdated the sentence passed by the judge. That position is reflected in the judgment of the then Lord Chief Justice, Lord Bingham, in the case of A and B [1999] 1 Cr App R (S) 52 at page 56. In giving guidance as to the way in which the court should approach this type of situation, the Lord Chief Justice indicated that where a sentence was being passed by a judge who is not informed that any assistance will be given to the authorities by a defendant, it will not normally be appropriate for this court to interfere with that sentence. The Lord Chief Justice indicated that a limited exception to that could be found in cases such as Sehitoglu , where the court has been informed that assistance either is or will be given to the authorities but the extent of that help or assistance and its value is not determined until subsequently, so that, as in the present conspiracy, the appeal of Sehitoglu was allowed on the basis that although the judge had given some credit for assistance in his original sentence, albeit he had not been able properly to determine the extent of that at the time so as to identify an appropriate period of reduction.[19]In this case, as we have indicated, the judge sentenced without being made aware of the fact that the appellant was prepared to give assistance to the authorities. In any event, he would not have been in any position to evaluate that help because no help was given until after the appellant was sentenced at the appellant's own request. The information which we have is such that it may well be appropriate for the prison authorities and the Parole Board to consider what has transpired since then, but we do not consider that the information that we have justifies us in interfering with the decision of this judge as to sentence on the basis that it was wrong in principle or manifestly excessive. In those circumstances, we dismiss this appeal.[20]Before we depart from it we would wish, however, to say that we have been impressed by the way in which this appellant has been making use of his time in prison, and undoubtedly that will also be reflected ultimately in the way in which the authorities view the need for his continued detention at an appropriate time in the sentence.[21]This appeal is dismissed.

Cited in 2 later judgments