Verdonck, R. v [2007] EWCA Crim 1024

Case No 200605142 A6[2007] EWCA Crim 1024
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 19th April 2007
Strand
London, WC2
B E F O R E:
LORD JUSTICE MOORE-BICK
MR JUSTICE BURTON
MR JUSTICE DAVID CLARKE
Between
R E G I N ACrown-v-
Between
EDWIG VALARIE JOANNES VERDONCK
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Non-Counsel Application
J U D G M E N T
[1]MR JUSTICE DAVID CLARKE: On 26th July 2006 the applicant, who is 44, pleaded guilty to two offences of conspiracy to import Class A drugs. They related to cocaine and ecstasy. On 8th September 2006, before His Honour Judge Pontius, he was suggested to ten years' imprisonment concurrent on each count, together with a direction that the time spent on remand should count towards his sentence. He now applies for an extension of time in which to renew his application for leave to appeal against that sentence after refusal by the single judge.[2]We have considered the material before us. The applicant is a foreign national. He complains of some lack of understanding of some parts of the proceedings and of the procedure and we are prepared to grant the extension of time and proceed to consider the renewed application on its merits.[3]There was a co-defendant also before the court on that occasion, Raymond Jones, aged 26. He had pleaded guilty to one of the two counts relating to cocaine and was sentenced to seven years' imprisonment.[4]The man behind the importations was a man call Jackie DeWitt. He was being dealt with in Belgium. The applicant was the person who, on DeWitt's behalf, brought drugs into this country. The co-defendant Jones was the person who received them.[5]The arrest of the applicant arose from the events of 19th January 2006, when the applicant travelled to Belgium, then to France and then back to London. On that occasion Jones was seen to drive to a petrol station in Lewisham to speak there to the applicant, following which, without anything changing hands, they both drove off, but it became apparent from intercept evidence that Jones had become aware of the fact, or at least suspected, that they were being followed. The applicant's Mercedes motorcar was thereafter stopped and searched. The car battery was found to be hollow, that is the place where the car battery should be contained no battery, but it did contain a plastic bag containing 8,000 ecstasy tablets, weighing 2.58 kilograms. The MDMA content was 21 per cent. A zip-lock bag contained a further 496 grams of MDMA. A cellophane wrapped block recovered from the false battery contained 998 grams, just under a kilo, of cocaine at 59 per cent purity and 4.7 grams of cocaine at 55 per cent purity. The total amount was just under 600 grams at 100 per cent purity.[6]Though the applicant initially denied that he had ever seen the packages before, he soon made an unsolicited comment:
"I've been really stupid. I needed the money to pay my solicitor. It looked like a nice opportunity to make some money and that's why I decided to bring drugs into the country"
. The co-defendant Jones was subsequently arrested and he also made some admissions.[7]It was found, when the car was examined, that the car battery had been removed in quite a sophisticated way. The drugs been placed inside and glued into place so that the drugs could not be taken without the battery cover being broken open. There was in fact another battery to power the car concealed elsewhere in the vehicle.[8]Intercepted calls indicated that this was not the first importation of drugs from Belgium. Half a kilo of cocaine had been imported in December and an unspecified amount on an earlier date in January. Jones was the UK connection and was the person who liaised with DeWitt, who had consigned them, by means of the applicant who worked for DeWitt.[9]When the applicant pleaded guilty, he did so on a written basis of plea maintaining that the 19th January was the first occasion on which he had been involved in such an importation. That basis of plea was not accepted by the Crown. They requested a Newton hearing so that three earlier importations could be taken into account. What transpired then is indicated in counsel's grounds of appeal at paragraph H, where he sets out this:
"The Crown requested an adjournment for a Newton hearing so that 3 other prior importations could be taken into account. The applicant eventually accepted involvement in the instant offence and 2 prior importations when the judge gave an indication that he would not receive a harsher sentence as a result of his greater involvement, by virtue of his involvement in the extra importation."
That last comment we take to refer to the third of the earlier three importations alleged against the applicant. Thus, the judge indicated that he would proceed to sentence on the basis that he had been involved in this conspiracy to the extent of the current importation and two earlier ones.[10]The applicant, however, renewing his application to this court, says:
"The judge in my trial indicated that he would not give me a harsher sentence even though I had admitted the additional charges"
. It seems to us that that was a misunderstanding of the situation, and that undoubtedly he did, when the question of a Newton hearing was being discussed, concede his involvement in two earlier importations. The position then seems to be that the judge passed sentence on the basis of those two earlier importations, as well as the one which led to his arrest. The judge was not minded to speculate on the weights and amounts of the previous importations (we derive this from the advice on appeal at paragraph 12), he was sentenced on the weights and amounts of the current importation.[11]The applicant was of previous good character, a Belgian national with a disabled child. His explanation for his involvement was shortage of money to support his son when he was out of work.[12]The judge, passing sentence, referred to the plea of guilty, albeit it was only on the date on which the matter was resolved that he admitted his full involvement in the three specific importations. He, however, granted credit for the guilty pleas. He drew attention to the fact that the co-defendants Jones was being sentenced for involvement in the importation of cocaine only, whereas, in the case of this applicant, both cocaine and ecstasy. The judge indicated the need for severe sentences to be passed for such offences.[13]The contention which the applicant makes and renews is that his sentence was substantially too long, particularly when compared with the sentence of seven years passed on Jones, who had some previous convictions, albeit none for his offences relating to the supply of drugs. That latter point does not impress the court. This man was being sentenced for involvement in the importation itself and in relation to both cocaine and ecstasy.[14]The sentence passed was, in our judgment, well within the brackets set out in the guideline cases. The single judge refused permission on the ground of the seriousness of the offences and indicated that the overall sentence was neither manifestly excessive nor wrong in principle. We agree and the renewed application, having granted the necessary extension of time, must nevertheless be refused.