Clough, R v [2009] EWCA Crim 1669

Case No 200806096/D2[2009] EWCA Crim 1669
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Thursday, 18th June 2009
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE RIX
MR JUSTICE GRIFFITH WILLIAMS
Venue THE RECORDER OF CARDIFF
Between
R E G I N ACrown
(Sitting as a Judge of the CACD)
v
Between
PAUL WILLIAM CLOUGH
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr B Grennan appeared for AppellantMr M Weekes appeared for Crown
J U D G M E N T

LORD JUSTICE RIX:

[1]The applicant, Paul Clough, needs two extensions of time to support this renewed application for leave to appeal against sentence. One extension of time is needed in respect of his original application and another extension of time is needed in respect of his renewed application. Both periods are a matter of a few weeks. We grant those extensions and give leave to appeal and treat Mr Clough as an appellant.[2]On 9th April 2008 in the Crown Court at Woolwich before His Honour Judge Carroll, the appellant changed his plea to one of guilty to conspiracy to commit an offence outside the United Kingdom. In doing so he was accepting an offence contrary to section 20 of the Misuse of Drugs Act 1971 and section 1A of the Criminal Law Act 1971, of being involved in a conspiracy to supply a Class A drug, namely cocaine, outside the United Kingdom. We are told that this is a relatively recent and not much used offence.[3]On 26th September 2008 Judge Carroll sentenced him to a term of 18 years' imprisonment and ordered that 564 days spent in custody on remand should count towards that sentence. His co-accused, Paul Stromberg, also changed a plea to one of guilty in relation to a separate count of possessing some 6 kilos of cocaine with intent to supply, but more importantly stood trial and was convicted of the same offence as that to which the appellant had pleaded guilty. He was sentenced to 28 years' imprisonment, made up of 26 years for the conspiracy, with a consecutive sentence of 2 years in respect of the possession with intent.[4]Stomberg's application for leave to appeal against conviction was refused and was not renewed and has now lapsed. As far as we are aware he has not appealed against sentence.[5]The conspiracy concerned an attempt, ultimately unsuccessful, to export 337 kilos of a powder made up of 81 per cent cocaine from Venezuela to Portugal. That amounts to 273 kilos of pure cocaine. Packages weighing about a kilo each were hidden inside a boat called The Samantha, which had been purchased in Clough's name. That boat was seized on 24th February 2007 by the Venezuelan authorities.[6]We are told that when cut to the usual purity levels of 30-35 per cent, this importation would have a value on the street of in excess of £43 million. It was accepted that both the appellant and Stromberg were close to the source of the drugs and played an important role in the conspiracy.[7]When the Venezuelan authorities searched the boat on 24th February 2007, they found the cocaine cunningly concealed in the lower half of the vessel, in effect below a false keel. It took about 4 hours to retrieve the drugs.[8]The background history to this matter was essentially as follows. In the previous October of 2006 the appellant and Stromberg flew to Venezuela and stayed there on that occasion for a couple of weeks. It was during that visit, on 19th October 2006, that the appellant bought The Samantha, an eight-year-old boat, which had been advertised for sale at £15,000. The boat was put into the appellant's name. The two then returned to the United Kingdom on 26th October. There was a further visit by both men to Venezuela in November. The boat was then worked on in or around December 2006, which was when the drugs were installed in it. It is accepted by Mr Grennan, who appears on behalf the appellant as he did before the judge, that the appellant's role extended to organising the placing of the drugs within the boat. It was also in December 2006 that the appellant started the process of organising the transport of the boat from Venezuela to Portugal. The appellant, unlike Stromberg, had no particular connections with Venezuela, but he did have connections with Portugal, as we are told Stromberg did as well. It was the appellant who contacted a Mr Felaze, a supervisor for the transportation company, whom he rang and e-mailed a number of times to arrange the export. In all of this he was liaising with Stromberg.[9]On 24th January 2007, at a time when the appellant had been putting pressure on Mr Felaze on a number of occasions to try to speed up the process of export, that pressure caused Mr Felaze to request an X-ray of the boat. By this time the boat had been taken from Margarita, where it had been bought, to the port of Portocabello. The boat was due to be shipped on 22nd February 2007, but that was delayed by the need to have it X-rayed and the departure was put back to March. As we have mentioned, it was on 24th February that the boat was searched by Venezuelan authorities and the cocaine was found. A new fibre glass floor had been installed during the month that the boat had been warehoused and worked on. It was then that the drugs had been stashed in it.[10]After the drugs had been found the appellant started to phone Venezuela saying he wanted to sell the boat. He made arrangements with various people there. On 26th February 2007, during this period, just two days after the cocaine had been found, the appellant met Stromberg and two other men in a Reading retail park where they appeared to have a discussion. Following arrests being made in Venezuela, Stromberg was arrested on 4th March, the appellant on 9th March.[11]On search being made at his address, a computer tower was seized. Emails regarding the transportation of the boat were found, also a business card for a company concerning computers which, when visited, led to the discovery that the appellant's computer had been wiped on 6th March, that is to say two days after the arrest of Stromberg. The obvious inference was that the appellant knew about Stromberg's arrest and had taken speedy action.[12]In interview he denied the offence, claiming that he had gone to Venezuela, had seen the purchase of The Samantha, together with Stromberg, as a business opportunity and decided to buy it and ship it to Portugal for resale at a profit; but he denied any knowledge of the drugs.[13]On 9th April 2008, when the appellant changed his plea, the judge made it clear that, despite that delay in pleading guilty, the appellant would receive a full one-third discount. We lack the transcript of that hearing on 9th April 2008, but Mr Weekes, who appeared for the prosecution below and appears today to assist the court, confirms Mr Grennan's submissions regarding what had then happened. We observe that the single judge, Tugendhat J, when refusing leave, was under the impression, as were we until the matter was clarified in court today, that there had been no such assurance about a complete one-third discount; but the single judge was working off the less explicit language about credit for a plea, which the judge used in his final sentencing remarks on 26th September 2008. The single judge made some criticism, in that context, of the inadequate basis to be found in those sentencing remarks for a promise of a full one-third credit. But that was because the single judge was himself ignorant of the background of 9 April, otherwise we are sure he would not have rendered that criticism.[14]As it is, on the first simple ground, that the judge, while saying that he treated both Stromberg and the appellant in the same way, with a starting point of 26 years, failed to do so, we would accede to the submission that the 18 years, although roughly representing a third of 26, does not quite meet the mathematical calculation which more precisely comes out at 17 years and 4 months. Had the judge not explicitly promised a full one-third discount, we would not have seen fit to amend the sentence by that small amount. But given his explicit promise, we do so. On that ground, therefore, the appellant is entitled to a reduction of 8 months in his sentence.[15]Mr Grennan's second ground, however, seeks to go much wider than that. As we have already indicated, the judge stated that he treated both men before him in the same way for the purposes of the conspiracy count. He said:
"Both of you became involved for financial gain and, having presided over the trial, I can state that it would be artificial for me to try to draw any real distinction between the roles that you each played. For example, even after the boat had been seized and the drugs discovered, you both attended the meeting at the retail park in Reading clearly to discuss future action to be taken by the conspirators."
[16]Nevertheless, Mr Grennan submits, in his written advice and in his oral submissions today, that the judge had been wrong to place both defendants before him in the same category of offending. Although there was no basis of plea, it was the appellant's mitigation before the judge that his role was limited to the purchase and preparation of the boat. He was to be paid £20,000 for arranging its exportation and thereafter his involvement with the drugs was to end.[17]As for Stromberg on the other hand, he submitted that, although even on the full material appearing at his trial the explicit facts did not go any wider so far as Stromberg's involvement in the operation was concerned, nevertheless, it could be inferred from the basic facts of the case that Stromberg, who was a comparatively wealthy man - whereas the appellant was unemployed - and had connections with Venezuela as well as with Portugal and spoke many foreign languages, was to be regarded as much closer to the heart of the conspiracy.[18]In this connection reliance is placed on a number of cases in which offenders have been sentenced for large scale importations of Class A drugs, cases such as R v Scarmonie (1992) 13 Cr App R(S) 702, R v Richardson (1994) 15 Cr App R(S) 876, R v Middlekoop [1997] 1 Cr App R(S) 423, R v Kanack [1998] 2 Cr App R(S) 283 and finally R v Billson [2002] 2 Cr App R(S) 113. It is submitted that a proper sentence for the appellant would be one of 15 rather than 18 years.[19]We have carefully considered that submission but we do not accept it. The authorities to which we have referred establish that, for relatively large consignments, a distinction might be made between those in the higher echelons and middle rankers but that for extremely large consignments, which the instant case certainly amounts to - Mr Grennan himself has used the expression "massive" - a sentence of 24 years and upwards is standard even for those who are described as middle rankers. Further distinctions might be made between those who are described as mere cogs, such as Kanack, one of the appellants in the case under that name. In Kanack's case, he was a courier or cog and his sentence, after a trial, was reduced in that case from 24 years to 18 years. But another appellant in the same case, described as a "mid ranker", was given a sentence of 24 years following a trial (reduced from 30 years).[20]We consider that the sentences handed down by the judge in this case were in no way out of line with the sentences discussed in that series of cases. It is not submitted that there is a disparity between the sentences of Stromberg and the appellant. What is said in effect is that, for all the importance of the appellant's role and the facts, as we have stated them, which are accepted, nevertheless Stromberg's role was still greater. Nevertheless, if that is so, it would have been the judge at Stromberg's trial who was in the best of all positions to consider that. The judge himself made that remark, in a passage in his sentencing remarks which we have cited having heard similar submissions to those that have been addressed to us, he stated that it would be artificial for him to draw any real distinction between the roles of Stromberg and the appellant. We therefore cannot accept that ground. Nor can we accept the third ground, not really pressed upon us today, that the sentences should have been lower because the attempt at importation had failed.[21]It is true that the appellant was of previous good character and was able to put before the court a number of character references. But, as has so often been said in these kinds of cases, that kind of mitigation really does not assist at this extreme level of offending in such serious crime.[22]For these reasons we are unable to accept Mr Grennan's broader submissions but, as we have already stated, we do accept the limited reduction that needs to be made on ground 1. Therefore, for the reasons contained in this judgment, this appeal is allowed. A sentence of 18 years is quashed and a sentence of 17 years and 4 months is substituted. To that limited extent this appeal is allowed.[23]MR GRENNAN: Would you allow representation orders in these circumstances, my Lord?

LORD JUSTICE RIX: Yes, we grant you a representation order.

[25]MR GRENNAN: I am very grateful.