Hogg & Anor, R v [2008] EWCA Crim 240

No. 2007/04150/A8, 2007/04151/A8Case No 2007/04219/A8[2008] EWCA Crim 240
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday 17 January 2008
The Strand
London
WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE DAVIS
and
MR JUSTICE DAVID CLARKE
Between
R E G I N ACrown
ATTORNEY GENERAL'S REFERENCE No. 89 & 90 of 2007
UNDER SECTION 36 OF
THE CRIMINAL JUSTICE ACT 1988
R E G I N A
- v -
ALFIE HOGG
NEIL ROLLS
and
- v -
Between
JOSEPH ANTHONY ROACH
Computer Aided Transcription byWordwave International Ltd (a Merrill Communications Company)190 Fleet Street, London EC4Telephone 020-7421 4040(Official Shorthand Writers to the Court)
A P P E A R A N C E S:2007/04150/A82007/04151/A8Miss B Cheema appeared for Attorney GeneralMr H O'Donoghue appeared on behalf ofthe Offender Alfie HoggMr S Ward appeared for Offender Neil Rolls2007/04219/A8Mr Y Chandarana appeared for ApplicantMr Q Hawkins appeared for Crown
JudgmentThursday 17 January 2008
[1]On 12 July 2007, at the Kingston Crown Court, a number of persons were sentenced by His Honour Judge Richard Haworth to periods of imprisonment after pleading guilty at various stages to an indictment which charged a conspiracy to supply significant quantities of a Class A drug (cocaine) and offences under the Firearms Act.[2]Her Majesty's Attorney General applies for leave to refer to this court for review, under section 36 of the Criminal Justice Act 1988, the sentences passed on the two offenders, Alfie Hogg (who was then aged 27) and Neil Rolls (then aged 29) on the ground that she considers them unduly lenient. We grant leave.[3]There is also an application for leave to appeal against sentence by one of the others involved in this matter, Joe Anthony Roach, who is aged 19. His application has been referred to the full court by the Registrar. We shall deal with his application in the course of this judgment.

The offences

[4]The offenders Hogg and Rolls were charged with seven others on the count of conspiracy to which we have referred. Hogg and another were in addition charged with the offences under the Firearms Act 1968. Rolls and another were also charged with offences under the same Act. The other defendants were charged with substantive drug offences.[5]On 16 February 2007, at a plea and case management hearing, Hogg pleaded guilty to conspiracy to supply a Class A drug, contrary to section 1(1) of the Criminal Law Act 1997. A written basis of plea was not accepted by the Crown. Roach and Carolan (another defendant) also pleaded guilty to the same offence on that date. We shall have to return in some detail to the problems caused by the way Hogg's basis of plea was dealt with in this case.[6]On 22 May 2007, Hogg pleaded guilty to possession of a firearm and possession of ammunition, contrary to sections 5(1)(aba) and 1(1)(b) of the Firearms Act 1968 respectively. The pleas were entered following a Goodyear indication from the judge that the possession of a firearm and ammunition would not result in a consecutive sentence but would be treated as an aggravating feature.[7]On 23 May 2007, Rolls pleaded guilty to the conspiracy and also to similar firearms offences. He also pleaded guilty to possession of a firearm, namely a silencer, and ammunition contrary to sections 1(1)(a) and (b) of the same Act. He also offered a written basis of plea which was not accepted by the Crown.[8]On 13 June 2007, two of the other defendants pleaded guilty to possession with intent to supply a Class A drug. They put forward bases of plea which were accepted by the Crown. Another defendant, Kelly-Marie Franklin, pleaded guilty to being concerned in the supply of a Class A drug. Her basis of plea was accepted by the Crown. She stated that she was aware of the drugs found at premises to which we shall refer. The Crown offered no evidence against the other defendants on the remaining counts. In the result, although initially nine persons had been charged with the conspiracy, no evidence was offered against two.[9]On 12 July 2007, sentence was passed on all of the defendants as follows: Roach, eight years' detention in a young offender institution; Carolan, eight years' imprisonment; Shepherd, three years' imprisonment; Jennings, three years' imprisonment; and Kelly-Marie Franklin, nine months' imprisonment. Hogg was sentenced to ten years' imprisonment for the drugs offence and a total of five years' imprisonment for the firearms offences, to run concurrently. Rolls was sentenced to ten years' imprisonment for the drugs offence and to five years' imprisonment for each of the firearms offences, to run concurrently.

The preparation of the reference

[10]The way in which this case came before this court is the first detailed matter to which we must refer before turning to the facts. As is usual a Draft Reference was prepared and approved by prosecution counsel in August 2007. In accordance with the practice which has developed, those representing the offenders were invited to agree the factual content of the draft. Those representing Hogg were sent the draft but failed to respond. The last letter, which was sent on 11 September 2007, indicated that in the absence of any response it would be assumed that the factual content of the document was agreed. Unfortunately, nothing was said by those acting on behalf of Hogg until a document dated 15 January 2008 (the day before yesterday) was sent to this court in which some challenges were made to the Reference. We make no criticism of counsel who appears before us today as he was not involved in this case earlier. However, those who represented Hogg should have dealt with matters at a very much earlier stage.[11]In Attorney General's Reference Nos 104 and 105 of 2007 (R v Padoan and Smith)[2008] EWCA Crim 216 (CA 2007/05564 and 05565/A7, 16.01.08) we made observations about the proper practice that should be followed in Attorney General's References where there were factual disputes. The court was faced with significant difficulties, as was counsel who appeared on behalf of the Attorney General, because those who acted for the offenders had not responded to the Reference.[12]In this case no particular problem has in the result emerged. But we think it right to observe that in future those representing the Attorney General might wish to argue that if no response is made to the Draft Reference, then the Attorney may wish to argue in a proper case that the court should proceed to consider the matter on the basis of the Reference and not allow fresh factual issues to be gone into in this court. The reason that such an argument may wish to be pursued is that it is extremely wasteful of time and limited resources if the document upon which the court is to proceed is not commented upon beforehand. Any difference there may be ought to be identified by the Attorney and dealt with in documents submitted a long time in advance to the court, together with any supporting material. Matters of dispute should not be raised at the last moment.[13]In the case of Rolls there was a response. It was asked on his behalf that it be made clear that the throughput of drugs was an estimate; that there was no evidence that the credit cards found in his possession had been used in criminal activity; and that it be clarified as to whether it was submitted by the Attorney that the judge erred in failing to pass a consecutive sentence for the firearms offences. The view was expressed that each of those matters had been addressed in the Final Consolidated Reference. The Judge’s sentencing remarks[14]Before turning to the details of the conspiracy and the submissions put forward by the Attorney General, it may be helpful to begin by setting out the sentencing remarks. The judge referred to the guilty pleas and to the fact that the defendants would receive a substantial reduction in sentence. He then stated that none of the defendants had any relevant previous convictions. That is a matter to which we shall return. He then continued:
".... but this was large-scale commercial criminal activity. It makes common sense to draw the inference that Hogg and Rolls were further up the hierarchy than Roach and Carolan. For the reasons set out in the prosecution document Response to Basis of Plea, I do not sentence Hogg and Rolls on their basis of plea, although there is nothing to gainsay paragraph 3 of Hogg's basis and paragraph 4 of Rolls' basis. The prosecution allege that 50 kilograms of cocaine was involved on the basis of the bags and the quantity of cutting materials found in the factory and elsewhere. Suffice it to say the quantity of cocaine was massive. Hogg and Rolls ran the factory where the two cocaine presses were operated and where the cocaine was cut and packaged." 15. ".... your basis of plea is accepted save with this exception: 'I only assisted in the preparation on two occasions'. I put it in this way on the evidence: that you assisted on at least two occasions. You have made good progress in prison, but as far as this matter is concerned you were a knowing and willing member of the team. You will go to prison for eight years." 16. ".... you will go to prison for five years, all concurrent, and concurrent to the other sentence that I passed on the conspiracy. Normally firearms offences attract consecutive sentences, but each of these offences attracts a minimum sentence of five years and if these sentences were consecutive the overall sentence would be excessive. I have noted that there is no evidence or suggestion that these weapons were used or taken from the places where they were found."

The basic submissions of the Attorney General

[15]We turn to the way in which the Attorney General has put the matter before us. It is contended that Hogg and Rolls were at the head of a well-equipped, organised, sophisticated and successful conspiracy to supply large quantities of cocaine to others. The equivalent of 5.1kg of cocaine at 100% purity was found at various addresses which were connected to the offenders and their associates and in two cars during the searches that took place. The scale of the operation to cut the cocaine with other agents indicated that at least 42kg of cocaine at 100% purity had been subjected to the process. The potential street value of the cocaine seized was £700,000. However, the potential street value of the cocaine seized in addition to the amounts calculated to have been processed would have been approximately £5.5 million.[16]Although hat was the essence of the way the Attorney General put the matter before us, it is necessary to refer in more detail to the roles of those involved; it was contended that Hogg and Rolls were at the head of the organisation whose operations included the running of what can properly be described as a “cocaine factory”. They had managerial responsibility and ran the organisation. They were the people who had established the factory and it was they who were the organisers. We shall return in due course to the detail of their role.[17]Roach was employed by the offenders Hogg and Rolls to mix and re-press the cocaine. Carolan was the purchaser and supplier. 1.25kg at 100% purity was attributed to him. Jennings was the storer of the cocaine; he looked after 0.640kg at 100% purity. Shepherd was a courier. Franklin was Rolls' girlfriend who assisted in hiding the cocaine at their home.

The basic facts

[18]The operation began on 13 July 2006. Carolan was observed by the police to visit an area close to where Hogg lived. He was later seen to visit the home of Jennings.[19]Shortly afterwards, Carolan was stopped in his car and arrested close to his home address. He was found in possession of 1kg of cocaine (0.32kg in its pure form) and a set of electronic scales.[20]Police searched Jennings' home. They discovered 2kg of cocaine (0.64kg at 100% purity) in a laundry bag in a cupboard under the stairs. During the search Jennings returned to his home and was arrested. It was the Crown's case that Jennings was the storer.[21]Carolan's address was then searched. In the course of that search quantities of cocaine were found. In addition, drug dealing paraphernalia and about £53,000 in cash were also found.[22]On 30 August 2006, police surveillance showed that Hogg left an address in Kent together with Rolls and Roach. The two offenders had bags with them. Roach and Hogg got into one vehicle and Rolls into another. They were followed to a lock-up garage at 9 Lordship Lane, Dulwich. Hogg and Roach were later seen leaving the garage, wearing face masks. Rolls then arrived with his girlfriend. He was seen to hand to Hogg various carrier bags before they all entered the garage.[23]On the afternoon of the same day Hogg met Shepherd (the courier) in Beckenham, South East London. Hogg handed him a carrier bag. They then both left in their respective vehicles. Shepherd was followed by the police. When his vehicle was searched 1kg of cocaine (0.32kg at 100% purity) and £7,000 in cash were found in the car. He was arrested.[24]Following a car chase, police officers arrested Hogg. He was found to be in possession of a set of keys, one of which was to the address in Kent. At that address police found Roach in the process of mixing cutting agents with cocaine. They recovered approximately 7kg of cocaine (0.7kg at 100% purity) and 30kg of cutting agents. There were also signs of a large-scale cutting process, nearly £37,000 in cash and a money-counting machine.[25]Hogg's clothing was also discovered at the scene, along with a semi-automatic pistol which contained four rounds of live ammunition. His DNA matched that found on the gun. Correspondence sent to the address of Rolls and Franklin was also found on the premises.[26]At the same time as the address in Kent was being searched, police discovered almost 2kg of cocaine (0.75kg at 100% purity) in the garage at 9 Lordship Lane, Dulwich, the premises at which Hogg and Rolls had been seen. At those premises drug-production paraphernalia including industrial hydraulic presses, white face masks, a paper suit and latex gloves were scattered all over the floor, along with cutting agents. White powder, which contained traces of cocaine, covered almost every object. A welded metal frame, manufactured in order to create a standard kilogram sized block, and heart-shaped magnets to brand-stamp the blocks, were also found.[27]In comments made upon the facts, Hogg contended that he was not responsible for purchasing the presses or for renting the garage; nor was he the named tenant of the premises in Kent. Although there is no evidence as to who purchased the presses, it seems to us that the fact that he was not the named tenant makes no difference.[28]More than 100 freezer bags were also found at the garage. Following sample testing, traces of cocaine with an average of 77% purity were discovered. Forensic tests on the face masks revealed that they contained Franklin's DNA as well as that of Rolls and Hogg. Fingerprints attributed to Roach were found on one of the hydraulic presses.[29]The search of Rolls' and Franklin's address at 13 Nightingale Lane, Bromley, revealed approximately 3.3kg of cocaine of between 25 and 75% purity on the premises. In addition to the drugs were found paraphernalia similar to that found in the garage at Lordship Lane.[30]Also at the premises at Nightingale Lane, the police found a semi-automatic pistol, nine rounds of live ammunition and a silencer. Although none of the live rounds of ammunition was in the semi-automatic pistol, the pistol, the ammunition and the silencer were all together in the same place. Rolls' DNA was found on the pistol and his fingerprints on the silencer. We shall return to the issue that was raised before the judge in relation to the inferences to be drawn from that and what happened before the judge.[31]A total of around £72,000 in cash was recovered from the house at Nightingale Lane. Franklin was arrested.[32]Rolls was stopped later that day in his car in Bromley. He managed to escape and was chased on foot. He was arrested two weeks later. In his possession he had a forged Irish passport, a false driving licence and credit cards, along with £4,500 in cash.[33]A forensic scientist analysed all of the drugs seized. He concluded, having considered the similar purities of the drugs recovered, the unusual mix of cutting agent, the wrappings and dimensions of the kilogram blocks, that all had been processed through the garage at Lordship Lane. Given the number of container bags found (156) and the fact that, of the 18 sampled, 14 bags contained traces of cocaine at 77% purity, it was possible to estimate that at lest 120 of 156 bags would have contained high purity cocaine ready for cutting. On the basis that each bag contained only 0.5kg, it was estimated that the scale of the operation was such that at lest 60kg at 77% purity had been processed by the defendants, which was potentially 120kg at 38% purity and 42kg at 100% purity.[34]The exercise that we have summarised in the preceding paragraph has been criticised by counsel for both Hogg and Rolls. We accept that it is an estimate; but estimates vary from what might be described as a "guestimate" to something which is highly reliable based on a scientific and methodical approach. Although we see force in one point made, namely that the sampling was not as great as it might have been, nonetheless it seems to us that the exercise carried out in this case was reliable and that we can proceed, as is evident the judge did from his sentencing remarks, on the basis that this conspiracy involved truly massive amounts of cocaine in the order of the quantities estimated. This therefore was a conspiracy of the utmost seriousness. We have summarised the quantities of drugs found on the various defendants at the particular locations and the quantities involved (5.1kg at 100% purity).[35]Hogg had no relevant previous convictions. Rolls had a previous conviction for causing grievous bodily harm with intent, contrary to section 18 of the Offences against the Person Act 1861. That was a conviction in 2002 for which he was sentenced, as reduced by this court on appeal, to six years' imprisonment. It is important to note that he was on licence at time of committing the offences with which we are concerned.[36]We turn to the issue to which we have already referred, the basis of plea and the dispute in relation to it. It seems to us that there are three relevant matters. (i). The levels of activity and responsibility of Rolls and Hogg. We consider that the position is straightforward. The sentencing judge made it clear that he rejected the basis of plea put forward. He proceeded upon the Crown's response, namely:
"The prosecution maintain that both Hogg and Rolls are at the head of the organisation of this conspiracy. Both were connected with and seen to go to the garage at Lordship Lane. This is where the cutting process of the drugs occurred on a large scale."
It may be that there was some other person somewhere higher than the offenders who supplied them with imported drugs, but it is self-evident that Hogg and Rolls must have been close to the source of supply. They ran (as the judge found) a factory which contained sophisticated equipment for the production of large quantities of cocaine for distribution; they were the organisers of this. There can be no doubt as to the basis upon which the offenders were sentenced by the judge and fall to be considered by this court. They were involved at a high level of organisation and fall to be dealt with accordingly. (ii). The quantities of drugs. We can see no basis for challenging the approach of the judge to the analysis of the quantities carried out by the Crown for the reasons to which we have already referred. (iii). The possession of the firearms. There is no issue as regards the position of Hogg which we have set out; he was found with a semi-automatic pistol loaded with live ammunition. However, in relation to Rolls the position must be examined further. The approach to Rolls’ basis of plea : “gainsay”[37]This may be a paradigm example of the way in which a court should not approach a case. In his basis of plea Rolls said:
".... 4. The gun, silencer and ammunition did not belong to Rolls. They had been supplied to him the night before the police found them. He was storing them. ...."
The Crown responded in a Response to Basis of Plea as follows: 43. "The prosecution cannot say when Rolls received the gun and silencer. However, if he had been given the items the night before it is a curious aspect of the case that his DNA was found on the gun and his fingerprint on the silencer, indicating that he had handled both."[38]That was the position when the Crown opened the facts before Judge Richard Haworth on 11 July 2007. They made it clear that one of the seriously aggravating features of this case was that both Hogg and Rolls were protecting their well-run cocaine operation, and the profits they no doubt derived from it, with loaded firearms. Later in the opening the Crown turned to the basis of plea. It was made clear that they did not accept the position put forward by Rolls. In respect of the pistol, silencer and ammunition found at Rolls' premises, the Crown made it clear that, even if the items had been obtained the previous night, the finding of Rolls' DNA and fingerprints showed that he had handled both. The Crown made it clear that they did not accept that they had been received just for storage. They were not in a bag indicating that they might be picked up. They were all together on a shelf in clear view.[39]Following that submission, the judge asked the Crown about paragraph 4 of the basis of plea. He said:
".... one can speculate about it but I do not think it can really be gainsaid, can it? COUNSEL FOR THE CROWN: We do not know. We do not know when the gun was supplied to him."
The matter was left there.[40]In the course of mitigation the judge observed that there was no evidence in the case that either Rolls or Hogg had used the firearm or indeed had taken it from the place where it was found. Counsel for the Crown accepted that there was no such evidence. However, the question which has troubled us today is the position as to whether the gun, ammunition and silencer found in the premises belonging to Rolls was there, as the Crown submitted, to protect the business and its profits or that it was merely there for storage. The judge accepted that there was nothing to "gainsay" the point.[41]What happened in this case was most unfortunate. In R v Underwood [2004] EWCA Crim 2256, [2005] 1 Cr App R(S) 90, Judge LJ made it clear how the position of the kind that arose in this case should be dealt with. It is an important judgment, parts of which are summarised in paragraph 5-73 of the current edition of Archbold. It is necessary to refer only to paragraph 5 where Judge LJ said:
"The third, and most difficult, situation arises when the Crown may lack the evidence positively to dispute the defendant's account. In many cases an issue raised by the defence is outside the knowledge of the prosecution. The prosecution's position may well be that they had no evidence to contradict the defence assertions. That does not mean that the truth of matters outside their own knowledge should be agreed. In these circumstances, particularly if the facts relied on by the defendant arise from his personal knowledge and depend on his own account of the facts, the Crown should not normally agree the defendant's account unless it is supported by other material. There is, therefore, an important distinction between assertions about the facts which the Crown is prepared to agree, and its possible agreement to facts about which, in truth, the prosecution is ignorant. Neither the prosecution nor the judge is bound to agree facts merely because, in the word currently in vogue, the prosecution cannot 'gainsay' the defendant's account. Again, the court should be notified at the outset in writing of the points in issue and the Crown's responses. We need not address those cases where the Crown occupies a position that straddle two, or even all three, of these alternatives."
[42]It seems to us that in the present case there was an overwhelming inference on the evidence of the finding of the gun, the silencer and the ammunition on a shelf in the premises that those items were there to protect the business. Rolls asserted that they were there for storage. Given the gravity of the conspiracy in this case and the serious aggravating feature of the possession of a firearm to protect the business if necessary, this was an issue where the Crown should have made it clear beyond peradventure that the basis of plea was not accepted. The judge should not have used the phrase that it cannot be “gainsaid”. With respect to the judge, the inference as to why the firearms were there was obvious. If Rolls sought to challenge the purpose for which the gun and silencer were at the premises, it was incumbent upon the court to hold a Newton hearing; the use of the term “gainsay” could well be seen as a substitute for analysis of the facts.[43]We have referred to this as a paradigm case because as a result of the course which the judge followed, counsel for Rolls has been placed in a difficult position. This was far too serious a case to leave in the air. If Rolls wished to pursue the point, there should have been a Newton hearing. Nonetheless, we have been told by his counsel that, in the light of the exchange that occurred, he considered that they judge accepted Rolls’ case. Certainly from the judge's sentencing remarks there must be at least an ambiguity about the position. We feel that it would be unfair if this court were to depart from the judge's apparent acceptance of the position regrettable though it is that the judge has placed this court in that position. However, we hope that in future every judge will have well in mind the principles set out so clearly now over three years ago by Judge LJ; that the situation that has arisen in this case, where the seriousness of the issue cannot be underestimated, never arises again; and that the word "gainsay" will forever disappear from use in Her Majesty's Crown Courts.[44]We have referred to this issue at some length because it seems to us that it is necessary to make the position very clear both because of its relevance to this case and for the future.

The aggravating and mitigating factors

[45]It is accepted by the Crown that the firearms were never used. If they had been, it would have been wholly wrong to have passed a concurrent sentence. The Attorney did not challenge the decision to pass concurrent sentences or the Goodyear indication; we therefore say nothing about that issue, but the fact we do not should not be seen as any form of precedent.[46]In relation to both offenders, the Attorney General points to the following aggravating features. First, two serious offences were committed. There was a very large-scale production of cocaine in the factory premises to which we have referred; there was the presence of firearms. This was a well-organised and sophisticated operation. There is no doubt as to the roles that Hogg and Rolls played. Nor is there any doubt that it was a profitable organisation on a large commercial scale. It had been subject to a degree of planning and permanence.[47]The only mitigation were the offenders' pleas of guilty which were tendered at an early stage, the fact that Hogg had a diagnosis of being suggestible and that threats had been made against him since his arrest.[48]In approaching this matter we have had regard to the well-known authorities of R v Aramah (1982) 4 Cr App R(S) 407, R v Aranguren and Others (1994) 16 Cr App R(S) 211 and to Attorney General's Reference Nos 99, 100, 101 and 102 of 2004 (R v Whiteway and Others) [2005] 2 Cr App R(S) 505.[49]This case did not involve the importation of cocaine, but rather the running of a factory on a commercial scale for the production and distribution of cocaine. In Whiteway the Vice-President (Rose LJ) said:
"45. .... 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 seems to us that there is virtually no distinction between someone who engages in the scale of commercial factory production to which we have referred and a person who imports cocaine into this country.[50]In our view, therefore, in the light of the authorities the starting point in respect of these offences, taking into account the activity and status of Hogg and Rolls, the quantities of drug involved, and the possession of the firearms in the circumstances to which we have referred, was upwards of at least twenty years.[51]We have considered all the matters to which we have referred and in particular the position on the one hand of Rolls, where his possession of the two firearms was, for the reasons we have given, to be dealt with on the basis we have set out, but who on the other hand had committed this offence whilst he was on licence on a sentence for a serious offence. Having regard to those two counterbalancing features and the respective roles of Hogg and Rolls we do not think it appropriate to draw a distinction between them. We take the view that the sentence imposed by Judge Haworth was unduly lenient. Taking into account therefore all the matters to which we have referred, we propose to substitute in each case a sentence of fourteen years' imprisonment.

The appeal of Roach

[52]We turn briefly to deal with the position of Roach. The basis of plea put forward by him was broadly accepted. In his basis of plea he said that he had no knowledge of the source of the drugs, nor did he have any involvement in their onward supply. He assisted in the preparation of the drugs at the premises to which we have referred. The cash found on him at the time of arrest was his payment. He had no knowledge that firearms were present. He also said that he assisted in the preparation on only two occasions. That was not accepted; on the evidence he was involved on at least two occasions.[53]Roach was of previous good character. He had been a cocaine addict. He had been recruited, on his account, by Hogg to work at the factory.[54]We consider that the sentence of eight years' detention passed on Roach, given his age, his involvement and his previous good character, was in the circumstances manifestly excessive. We propose therefore to grant him leave to appeal, to quash the sentence of eight years' and to substitute for it a sentence of six years' detention in a young offender institution. To that extent his appeal against sentence is allowed.