James & Ors [2008] EWCA Crim 765

Case No 200706291/A8-200800151/A8-200706366/A8[2008] EWCA Crim 765
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 2nd April 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE HENRIQUES
SIR RICHARD CURTIS
R E G I N A
v
PHILLIP SAMUEL JAMES
ANTHONY BEST
LEE INGRAM
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Mr M Cousens appeared on behalf of the Appellants James & Ingram
Miss A Johnston appeared on behalf of the Appellant Best
Miss A Darlow appeared on behalf of the Crown
J U D G M E N T
[1]MR JUSTICE HENRIQUES: These are appeals by Phillip James, aged 38, Lee Ingram, aged 41, and Anthony Best, aged 38. They all appeal with leave of the Single Judge.[2]On 19th October 2007 in the Crown Court at Southwark, James and Ingram pleaded guilty to conspiracy to supply a controlled drug of Class A, cocaine. On 20th November 2007, Best also pleaded guilty to conspiracy to supply a controlled drug of Class A, cocaine. James was sentenced to 10 years' imprisonment, with 134 days spent on remand ordered to count towards his sentence. Ingram likewise was sentenced to 10 years' imprisonment, with 133 days spent on remand to count towards his sentence. Best was sentenced to 7 years' imprisonment, with 134 days spent on remand to count towards his sentence.[3]Between 22nd February and 7th July 2007 the appellants were concerned in organised cocaine distribution from a bar by the name of Bar Bed in the Whitechapel area of London. There was a ground floor bar, monitored by surveillance cameras and a locked door marked "private" operated by an intercom buzzer which led to a first floor bar. Customers approaching the door could be checked on camera before being buzzed in if approved. The door opened outwards, making it difficult to force the door in the event of a raid.[4]Cocaine was sold in the toilet area of the first floor bar, referred to by the appellants as "the office". Customers buzzed into the first floor bar when they wanted to purchase cocaine. They would be taken to the toilets, where the appellant working in the bar at that time would supply them with snap sealed bags of cocaine from a leather pouch kept behind the bar. The bags cost £50 and typically contained about 800 milligrams of cocaine in low concentration. The appellants worked a shift system to cover the bar and all took an active part in supplying cocaine. In total they supplied to undercover officers 150 snap sealed £50 bags containing 800 milligrams of cocaine, over a five-and-a-half month period. They were also seen regularly supplying other customers with cocaine during the same period. Whilst they kept detailed records, unfortunately those records were not recovered.[5]The main undercover officer (given the name "Chris") first went to the bar on the afternoon of 23rd February. Ingram invited him upstairs. Another man asked Ingram for drugs. Ingram said "step into my office" and invited Chris to come with them. In the toilets Ingram supplied Chris and the other man with snap sealed bags of cocaine from a leather pouch for £50 each. They returned to the bar. The officer's bag contained 796 milligrammes of cocaine at 53 per cent purity.[6]We have had regard to a schedule annexed to Ingram's grounds of appeal which indicate that Best was the defendant who principally dealt with the undercover officers. Of the 29 deals Best was responsible for 19 deals, Ingram three deals and James five deals. Whilst we deduce that Best had the task of handling cocaine more often than either of his co-accused, this was a conspiracy in which all three appellants had an active part to play. The roles as found by the judge were that Ingram and James were behind the scene organisers, whereas Best did the donkey work and was described as "a gofer." It has not been suggested at all today that the learned judge was in any way in error in that conclusion. Indeed counsel for Ingram when mitigating stated that Ingram and James were at the organising level, and they employed Best on their behalf. Best was employed at the rate of £300 per week.[7]On behalf of Best, we are reminded that in interview the police put to Best:
"It appears to us that you do all the donkey work. You are the person who does the hours, whilst they take the cream of all the money that is made. They are people who have nice houses, nice holidays, don't owe lots of money, don't earn £300 per week."
[8]It is amply demonstrated throughout all sentencing authorities relating to drugs that those higher up the ladder of authority and closer to the source of drugs merit longer sentences than foot soldiers and gofers. By way of demonstrating the respective roles of the three appellants, it is to be noted that on 21st March 2007, Best told the undercover officer, Chris, that they were out of cocaine. He made a couple of calls and then told Chris that the drugs would arrive in 15 to 20 minutes. James, who appeared to be the bar manager, arrived a short time later, with a shoulder bag and replenished the stock of cocaine. In April 2007 James went on holiday with his partner to Dubai. He showed one of the undercover officers a Cartier watch purchased for £3,500. He said that he had bought his partner a similar one.[9]On 4th July 2007 Best was seen cutting up straws from the bar for customers to snort cocaine. An undercover officer purchased cocaine from him and obtained his mobile telephone number. On 6th July he rang Best and said that he wanted "7 or 8", meaning 7 or 8 grams of cocaine, because he was purchasing drugs for a few friends. The officer went to the bar that afternoon. A number of plain clothed officers were stationed in the downstairs bar. Best supplied the undercover officer with seven bags, containing a total of 6.1 grams of cocaine at 39 per cent purity. James then arrived. The officers arrested Ingram and all the downstairs customers. Best saw what was happening on the monitors and shouted "it's a raid" and ran to get the leather pouch. He pulled out all the bags of cocaine. The undercover officer said he would take the leather pouch and get rid of it. Best and James were arrested. There were 60 bags in the leather pouch, containing 24.3 grams of cocaine, at 36 per cent purity and 24.5 grams of cocaine at 35 per cent purity. Customers in the upstairs bar were found to have identically packaged bags of cocaine in their possession. £16,390 was recovered in bank notes, including notes which matched the serial numbers of those issued to undercover officers for the purchase of cocaine.[10]James' flat was searched. £3,800 in cash and 620 Euros were recovered. Two of the notes corresponded with notes issued to the undercover officers and £9,000 in cash was seized from Ingram's property.[11]The relative roles of each appellant are clear. Best draws attention to the fact that he was a paid worker. He did not source the drugs. He did not hold the drugs. He did not financially benefit from selling the drugs. He has no saving and lives in rented accommodation. He had no drug paraphernalia at his home. He was an addict removing cocaine from packets destined for purchases. It is submitted that he was on a par with low-level street dealers.[12]That is a submission which we roundly reject. Miss Johnston additionally points out that Best has suffered from severe depression for some time, a medical history which precedes this conspiracy. He was addicted to drug taking at the time. He had a troubled time at home. He was not benefiting financially from this conspiracy, save and except for the fact that he was retaining his employment at £300 per week. He has subsequently encountered grave psychiatric difficulties which it is not necessary to deal with in this judgment, save to say that he has had an extremely difficult time in prison. He has had difficulty coping. He has suffered from panic attacks and has had to be observed whilst in custody. He has been a "model prisoner".[13]Ingram accepts that he and James were responsible for the day-to-day running of the premises, although they were not licensees and James takes no issue with that concession, nor is it suggested that any distinction should be drawn between Ingram and James. It is in this case an aggravating factor that dealing took place on licenced premises. The period of dealing was extensive, some 20 weeks or 5 months. The dealing was by no means limited to the purchases made by the undercover officers and the rewards, whilst incalculable, must have been very substantial. At the same time the point can properly be made that this was retail detailing and not wholesaling, and the appearances are that such dealing as there was with the wholesalers, in order to acquire stock, was at a comparatively modest level. Stock was purchased on an ad hoc basis and not in bulk. Sixty grams was seized on the day of the raid and it is said that that was the weekly stock. The upstairs bar was not permanently in use but closed at weekends and on Mondays.[14]James is 38 years of age, with previous convictions for dishonesty. His last conviction was for a conspiracy to burgle non-domestic premises in 1998, for which he was sentenced to 2 years' imprisonment. Ingram is 40 years of age, with no relevant previous convictions. In determining the appropriate sentences for the two organisers we see no basis for distinguishing between them. It is not necessary to review at length the several authorities to which we have been referred, in particular R v Aramah (1983) 76 Cr App R(S) 190; R v Aroyewumi (1995) 16 Cr App R(S) 211; R v Satvir Singh [1998] 10 Cr App R(S) 402; R v Dhajit (1992) 2 Cr App R(S) 142; R v Afonso [2005] 1 Cr App R(S) 99 and R v Wynter & Ors [2003] EWCA Criminal 2597. Wynter has some limited similarity in that a block of flats was used from which purchases were made. The surveillance was however over a much shorter period, only 12 days. The major players were sentenced to 10 years' imprisonment after pleading guilty, lesser players to 9, 5, 4 and 3 years. Ten year sentences were reduced by this Court to 8 years, 9 years was reduced to 6.[15]It has to be said that no authority is entirely in line and we have been referred to no case in which drugs were available to the public, on request at licenced premises, provided by the management of those licenced premises. We wish to make it clear that there is every possible distinction between low level street dealing and what was being transacted in the present case. The temptation to deal in drugs on licenced premises, by those who make a living out of drugs, must be significant. One of the sentences passed in this case must not be cited as by way of guideline because there are real and significant personal factors in mitigation which we have already outlined in the case of Best.[16]The principal argument in relation to James and Ingram is that a starting point as high as 15 years is simply too long having regard to the levels at which drugs were being dealt with in the present case. We accept that argument. A starting point to a degree less then 15 years is, in our judgment, appropriate. We are minded to reduce the sentences in the case of Ingram and James to 8 years' imprisonment, less the time spent on remand. In the case of Best, by reason of his significant and substantial personal mitigation and his lesser role, we are minded to reduce the sentence to one of 4 years' imprisonment. The level of that sentence reflects the significant and unusual mitigation in his case and must not be relied on by others hereafter. To that extent these three appeals succeed.

LORD JUSTICE RIX: The appeals succeed to those extents, 8 years, 8 years and 4 years.