Attorney General Reference Nos 99, 100, 101 & 102 of 2004 [2005] EWCA Crim 294

Case No 200404409/A5-200404410/A5-200404411/A5-200404412/A5[2005] EWCA Crim 294
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Monday, 7th February 2005
Strand
London, WC2
B E F O R E:
THE VICE PRESIDENT
(LORD JUSTICE ROSE)
LADY JUSTICE SMITH
MR JUSTICE BUTTERFIELD
REFERENCE BY THE ATTORNEY GENERAL UNDER
S.36 CRIMINAL JUSTICE ACT 1988
ATTORNEY-GENERAL's REFERENCE NOS 99, 100, 101 & 102 OF 2004
(JULES WHITEWAY, TOM CONNELL, JAMES LONG & MILROY NADARAJAH)
Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR RICHARD HORWELL appeared on behalf of the ATTORNEY GENERAL
MR CHARLES BENSON appeared on behalf of the OFFENDER WHITEWAY
MISS JANETTE HAYNE appeared on behalf of the OFFENDER CONNELL
MR PETER ROWLANDS appeared on behalf of the OFFENDER LONG
MR SIMON MAYO appeared on behalf of the OFFENDER NADARAJAH
J U D G M E N T
[1]THE VICE PRESIDENT: The Attorney-General seeks the leave of the Court, under section 36 of the Criminal Justice Act 1988, to refer sentences said to be unduly lenient. We grant leave.[2]The application relates to four offenders: Whiteway, who was born in June 1972 and so is now 32; Connell, who was born in December 1973 and who is now 31; Long, who was born in January 1973 and is now 32; and Nadarajah, who was born in October 1970 and is now 34.[3]The offender Whiteway was indicted on a total of six counts. At the plea and directions hearing on 4th March 2004 he pleaded not guilty to each count. On 16th June he changed his plea to guilty on three of the counts: count 1, of conspiracy to supply cocaine, count 3, of conspiracy to supply cannabis resin and count 5, conspiracy to supply cannabis. The remaining three counts were ordered to lie on the file on the usual terms.[4]On 9th July he was sentenced at Southwark Crown Court by His Honour Judge Mackinnon to 12 years on count 1, 4 years on count 3 and 3 years on count 5. Those sentences to run concurrently.[5]In summary, he was a principal conspirator in a well-organised commercial enterprise to supply large quantities of cocaine, in particular, and also, in his case, cannabis resin and cannabis. Whiteway made considerable profits from his drug dealing and he enjoyed a lifestyle very different from that which could have been funded out of his very modest declared income.[6]Connell was indicted on count 1 only. At the plea and directions hearing he pleaded not guilty. On 17th June 2004 he changed his plea to guilty. He was sentenced on 9th July by the same judge to 8 years' imprisonment.[7]In summary, he delivered or received cocaine on a number of occasions as part of this well-organised commercial enterprise to supply drugs in wholesale quantities. He also helped in the keeping of business records.[8]Long pleaded guilty at the plea and directions hearing on 4th March to count 1, the conspiracy to supply cocaine. That plea was accepted and the remaining five counts lying against him on the indictment were ordered to remain on the file. He was sentenced by the same judge, on the same occasion, to 9 years' imprisonment. In summary, he made a significant contribution to this enterprise over a period of a number of months. He assisted in the keeping of business trading records for the conspiracy and so, in consequence, was necessarily aware of the scale of that which was taking place. He received the equivalent of 11.2 kilograms of cocaine of 100% purity. He had a key to one of the storage units for drugs and cash.[9]The offender Nadarajah was indicted on the same six counts and to all of them he pleaded not guilty at the plea and directions hearing. On 16th June he changed his plea to guilty on count 1 and the remaining counts were left on the file. He was sentenced, on the same occasion, by the same judge, to 7 years' imprisonment. He, in summary, had delivered to Long the equivalent of 11.2 kilograms of cocaine of 100% purity at the unit in East London used by the conspirators for storage purposes. It was also the centre from which distribution occurred of large quantities of cocaine at a wholesale level.[10]It was accepted that this single delivery by Nadarajah was the only one which he made. But his contribution to the conspiracy and the level at which he operated, having regard to the size of that delivery, was clearly significant.[11]In a little more detail, the conspiracy alleged in each of the counts in the indictment was described as existing on or before 5th September 2003. It was the Crown's case that the conspiracy had existed for a considerable period before that date. The storage and distribution facilities were in a number of storage units at the Truman's Brewery building in Brick Lane, East London. Between 1st June 1999 and 1st August 2003 the offender Whiteway rented three storage units at that building. They were rented in a variety of different names and the deposits to secure them and the rents in payment for them were made in cash.[12]On 5th September 2003 the three offenders Long, Connell and Nadarajah, and a woman called Amanda Stookin were observed in a variety of places and activities.[13]Just after 6.00 in the evening, Long and Connell were together in Regent's Park. Long drove there in a silver BMW motorcar which was registered to Whiteway. Connell arrived in the back of a black Fiat motorcar registered to Connell, but it had previously been registered to Whiteway. Just before 7 o'clock, Long drove the silver BMW to a street near to the storage units to which we have referred, where he parked. Long alighted, carrying a black canvass bag, and walked towards the units. At 7.11 pm he was back in the street and used a mobile telephone to contact the offender Nadarajah. At 7.20 a black Range Rover arrived driven by Amanda Stookin. Nadarajah was a passenger. Long directed the Range Rover to park next to the BMW. Nadarajah and Long, from the boot of the Range Rover, unloaded three boxes, which they took to one of the storage units which Whiteway had rented from 1st August 2003. A minute or two later, Long walked away from the storage units and started to run. He went into a public house in Brick Lane. A minute or two later he was arrested there by customs officers.[14]At 7.58, Nadarajah was arrested as he left the unit to which the boxes had been taken. That unit was searched. The three boxes from the Range Rover were found. They contained 25 blocks of cocaine, the total weight of which was 14.8 kilograms of between 76 and 78% purity, that is the equivalent of just over 11 kilograms of cocaine at 100% purity. In addition, there was the usual paraphernalia for large-scale drug dealing, a hydraulic press, metal plates for the press, electronic scales, rubber gloves, scalpels, re-sealable bags, a large quantity of cash, a selection of mobile telephones and jugs. Many of these items were contaminated by traces of cocaine. From another storage unit, Unit 33 Block 24, which the offender Whiteway had rented on 1st June 2001, just over 5.7 kilograms of cannabis resin and just over 1.1 kilograms of herbal cannabis were found, as also were £200,000 in used notes and the largest of the three presses which were recovered.[15]There was also recovered from the unit to which the boxes from the Range Rover had been taken a computer, which contained trading records for the drug supply conspiracy. Those began on 30th May 2002, but it was clear from the recorded opening balances that dealing had started before then. The offender Long was the original keeper of that record, but he signed it off on 2nd September 2003 and passed it on to Connell for him to keep. That indicates the degree of trust placed in Connell. An undated text message from Connell's mobile telephone referred to, in coded form, cash, "but not to worry because the computer had been flooded and was not working properly". That message was sent after the first arrest of offenders had been made. The computer referred to in that message has not been traced. It is apparent that the opening and closing trade records have not been recovered. But analysis of those computer records which have been recovered reveals that, in relation to cocaine, 142.26 kilograms, in relation to cannabis resin, 566.089 kilograms, and in relation to herbal cannabis, just over 434 kilograms had been handled and dealt with. The total cash turnover was just over £7.6 million. That analysis does not include the 14.8 kilograms of cocaine, delivered by Nadarajah to Long on 5th September 2003.[16]When Long was arrested, as we have described, in the public house on 5th September, he had in his possession a key to the unit where the boxes had been delivered and the computer, to which we have referred, was. When his home address was searched, the key to another unit was found; and at that unit, cannabis and cash were recovered. Long also had in his possession documents and computer equipment showing that he was one of those involved in compiling the trading records of the business. On interview, he made no reply to the questions asked of him.[17]Nadarajah, as we have said, was arrested on 5th September 2003. When his home was searched there was found a sum of just over £2,300 in cash, together with a money counting machine and various documents relating to the use of expensive motor vehicles. In a storage unit there was another hydraulic press, contaminated with cocaine. The house in which Nadarajah lived was of very considerable value. He made no comment when he was interviewed. His declared income for 2001 to 2002 was less than £8,000.[18]On 19th September the offender Whiteway was arrested in East London. He made no comment in interview. He declared annual income to the Inland Revenue of £20,000. He lived in a house worth £300,000. He owned the silver BMW to which we have referred and a share in a light aircraft.[19]Connell was arrested on 8th December 2003. Apart from admitting owning the black Fiat, he made no comment when he was questioned. DNA relating to Connell was found on a glove recovered from the unit to which the three boxes were taken from the Range Rover.[20]Mobile telephone communications were analysed and showed that there were 39 calls between one of Nadarajah's telephones and one of the offenders. On 5th September 2003 (which, it will be recalled, was the date of several arrests) there were two calls from Nadarajah to Whiteway and two calls between Nadarajah and Long.[21]In his sentencing remarks, Judge Mackinnon described the conspiracy to supply cocaine as a highly organised criminal enterprise, which had lasted for at least 18 months and had generated a multi-million pound turnover and, in consequence, huge profits. The computer trading records, as the judge observed, showed £7.5 million had been spent on the purchase of drugs, including the purchase of 142 kilograms of cocaine, not including the delivery on 5th September. Having regard to the comparatively high level of purity of that cocaine, the judge observed that the conspirators must have had a close connection to the importers.[22]In sentencing Whiteway, the judge described him as having a leading role in the organisation of the conspiracy, buying directly from the importers and acting as a wholesaler of substantial quantities. His role was such that a sentence in the region of 20 years would have been justified in the event of a contested trial.[23]On behalf of the Attorney, Mr Horwell draws attention to the aggravating features in relation to Whiteway, namely the conspiracies in relation to cocaine and cannabis were highly a organised commercial enterprise, trading in very large quantities of the drugs; secondly, the conspiracies lasted for at least 18 months; and thirdly, Whiteway had a leading role in those conspiracies. Mr Horwell draws attention, by way of mitigation, to Whiteway's plea of guilty, albeit not at the earliest stage.[24]In relation to Connell, the judge passed sentence on the basis that he had been recruited to deliver cocaine on a number of occasions during a period of about 9 months. The judge assessed the offender's role within the conspiracy as important, but accepted that Connell did not receive any substantial reward for his involvement.[25]Mr Horwell, in relation to aggravating features present in Connell's case, stresses the seriousness of this conspiracy. Connell was a conspirator for an appreciable period of time and made a significant contribution to it.[26]Mr Horwell draws attention the plea of guilty, albeit not at the earliest stage, by way of mitigating feature.[27]As to the offender Long, the judge passed sentence on the basis that he played an important role, albeit subordinate to Whiteway. He was trusted to have possession of the key to one of the units and, because he kept the business trading records, he must have known the scale on which cocaine was being distributed. The judge accepted that the offender was not an organiser and had only joined the conspiracy after it had been in place for some time.[28]Mr Horwell, in relation to Long, draws attention to the aggravating features lying in the gravity of the conspiracy, the fact that Long was a member for an appreciable period of time and the fact that he made a significant contribution to it.[29]As to mitigating features, Mr Horwell draws attention to the plea of guilty at the earliest stage, the fact that the offender was not an organiser and had joined the conspiracy after it had been in operation for some time and the fact that he has no previous convictions.[30]Finally, as to the offender Nadarajah, the judge passed sentence on the basis that he played an important part in delivering the large consignment on 5th September, so his role was a serious one. It was, however, accepted that he was not involved in any other deliveries.[31]Mr Horwell draws attention to Nadarajah significant contribution to a serious conspiracy. He draws attention to the mitigating feature in the offender's plea of guilty, albeit not at the earliest stage and the limitation of his involvement to the single consignment on 5th September.[32]Mr Horwell submits that the sentences imposed by the learned judge failed properly to reflect the gravity of these offences, their aggravating features and the need for deterrence and public concern about offences of this kind. In particular, he further submitted that the judge's starting point of 20 years in relation to Whiteway, had there been a trial, was too low. He sought to substantiate the latter part of that submission by reference to a number of authorities. In Moss 9 Cr App R(S) 91, following a plea of guilty to importing 12 kilograms of cocaine, this Court upheld a sentence of 12 years. In Garcia 13 Cr App R(S) 583, this Court upheld a sentence of 14 years, following a plea of guilty, to importing 5.3 kilograms of 50% to 60% purity. It is to be noted that Garcia was the top man in relation to that conspiracy. In Samaronie 13 Cr App R(S) 702, a sentence of 20 years was upheld, following a plea of guilty to the importation of 20 kilograms of 95% purity, somewhat unusually, in the diplomatic bag. In Richardson & Ors 15 Cr App R(S) 876, a sentence of 25 years was upheld by this Court in relation to one of the defendants, following a trial in relation to the importation of 188 kilograms of cocaine. In Brougham [1996] 2 Cr App R(S) 88, this Court reduced from 15 to 12 years, following a plea of guilty to importing 6 kilograms of 100% purity. In K [2003] 1 Cr App R(S) 22, a sentence of 26 years was upheld, following a plea of guilty on the eighth day of trial, in relation to the importation of approximately £100 million worth of heroin. In Rainho [2003] 1 Cr App R(S) 389, this Court upheld a sentence of 15 years, following a trial, in relation to the importation of 7.5 kilograms of 100% purity.[33]Mr Horwell submitted that there should be no material distinction drawn when sentencing those who play a major role in the importation of large quantities of Class A drug and those who play a major role in its distribution in this country. In our judgment, some (albeit small) distinction does need to be made.[34]On behalf of the offender Whiteway, Mr Benson stressed that he became involved in these activities at a time when he was himself addicted to cocaine. It may be, submits Mr Benson, that, without that addiction, he would not have been involved. While in prison he has been making considerable efforts to free himself from drugs and to give help to others. He relies on the authority of an unreported decision of this Court in Gill & Van der Leest, Court of Appeal (Criminal Division) transcript 16th June 1997, where, towards the end of the judgment, which related to a massive seizure of Ecstasy, the Court said this:
"As was pointed out in Warren & Beeley the amount of drugs is only one of the factors to which regard must be paid in the sentencing process. However generally speaking and by way of guidance, where a massive quantity of Class A drugs has been imported, a sentence significantly in excess of 20 years, after a trial, should, in our judgment, be reserved for exceptional cases where, for example, the amount of drugs involved is truly enormous or the defendant is to be sentenced for taking part in more than one such importation, or the defendant has a previous record for serious drug dealing, or the defendant is at the pinnacle of responsibility for the particular importation."
This Court sees no reason, today, to depart from those observations.[35]Mr Benson's submission is that, albeit the plea of guilty was not tendered as early as it might have been, that is attributable, at least in part, to further material coming from the prosecution.[36]We do not find that a particularly persuasive submission. The offender Whiteway must have known the extent to which he was involved in this conspiracy and must have been able, at an earlier stage than he did, to admit his guilt in relation not only to the cocaine conspiracy but the cannabis and cannabis resin conspiracies too.[37]Mr Benson's essential submission is that the sentence passed upon Whiteway by the learned judge may have been lenient, but it was not unduly lenient; and, taking into account double jeopardy, involved in the resentencing process in this Court, the sentence passed by the learned judge should not be interfered with.[38]On behalf of Long, Mr Rowlands, in attractive submission, stressed that Long was less involved that Whiteway in these activities. True, he was, once or twice a week, the domestic courier of large quantities cocaine; true, he had a key to one of the stores; and true, he entered his own activities on the computer to which we have referred. In consequence, he played a considerable role in this conspiracy. Nonetheless, his role was, submits Mr Rowlands - rightly - at a lower level than that of Whiteway.[39]Long is of good character. There were before the learned judge, as there are before us, favourable references in relation to him. But, submits Mr Rowlands, even if the sentence could be described as borderline lenient, double jeopardy should preclude this Court from interfering with it. Mr Rowlands submitted that, a sentence in relation to Long could have been at the level of 15 years on a trial, so that a discount of one-third would have produced a resulting figure of 10 years. Even if the sentence were at a somewhat higher level of 16 or 17 years on a trial, with a resultant sentence on the plea of guilty of 11 or 12 years, the sentence of 9 years on Long should not be interfered with.[40]On behalf of Nadarajah, Mr Mayo stressed that he was being dealt with in relation to the single conspiracy only; and he said that the contamination of equipment which was found could not be attributed to Nadarajah because he had vacated the premises where they were found some months before.[41]Mr Mayo submitted, by reference to the case of Richardson, that there was a degree of comparability between Nadarajah's position and that of the two facilitators of importation, who, in Richardson's case, received sentences of 10 years at the hands of the trial judge.[42]On behalf of Connell, Miss Hayes stressed that his role was that of a delivery boy. He was one of 26 such who were named in the computer records. He had made eight deliveries, over an 8-month period and had been paid for this activity just under £8,000. He is an outstanding musician, born of musical parents. He had, at the age of 20, sought, unsuccessfully, to establish for himself a recording studio. He had been drawn into using cocaine by the musicians with whom he mixed and, although it was not suggested by Miss Hayes that Connell was addicted to the drug, his appreciation of the gravity of what he did was, she submits, distorted because of the use to which that drug was put by those musicians with whom he associated. He has been doing his best in prison, teaching music to fellow inmates.[43]All of these matters we bear in mind. As it seems to us, generally speaking, those responsible for organising the importation of Class A drugs into this country will attract somewhat higher sentences than those responsible, as Whiteway was, for organising distribution in this country. The difference, however, is not likely to be very great. It is perhaps convenient to compare with the present case Soares & Ors [2003] EWCA Crim 2488 (5th September 2003), where sentences in excess 30 years would have been regarded as properly representing the starting point, following a trial, for the prime mover in importing 2,000 to 3,000 kilograms of a Class A drug. Comparison can also be made with Lowe & Ors unreported, Court of Appeal (Criminal Division) transcript 30th October 2003, where two senior, but not top, organisers of importations in excess of 100 kilograms of Class A drugs attracted sentences in excess of 20 years, following a trial.[44]Our conclusion is that the judge's starting point of 20 years for Whiteway, had there been a trial, was at the bottom of the appropriate bracket for a major organiser of wholesale distribution in this country, leaving in mind he was not the top man in relation to the dissemination of these drugs. That said, the figure of 12 years to which the learned judge discounted the 20-year figure, was, in our judgment, conspicuously overgenerous, having regard, in particular, to the late stage of Whiteway's plea of guilty.[45]We would have expected, had he pleaded guilty at the earliest opportunity, a sentence of 13 or 14 years in relation to Whiteway and, having regard to the stage at which he did plead guilty, a sentence of the order of 15 or 16 years.[46]It follows that his sentence was, in our judgment, unduly lenient. However, we have to take into account double jeopardy. Bearing in mind the sort of discount which would necessarily have to be applied to a figure of 15 or 16 years before we could reach the figure which would be appropriate in this Court, it seems to us that the sentence of 12 years passed by the learned judge, in relation to Whiteway, is not one with which, in the exercise of our discretion, we should interfere.[47]So far as the other three offenders are concerned, we would have expected, in relation to each of them, a sentence somewhat higher than that imposed by the learned judge. We would have expected a sentence of the order of 11 years in relation to Long, 10 years in relation to Connell and 9 years in relation to Nadarajah. Without analysing whether the sentences which were passed should properly, therefore, be characterised as lenient or unduly lenient in relation to these three offenders, it is apparent that, when double jeopardy is taken into account, the sentences which were passed upon them by the learned judge are not sentences with which this Court ought properly to interfere.

Cited in 3 later judgments