Stewart & Ors, R v [2011] EWCA Crim 2296

Case No 201103775 A7/201103781 A7/201103782 A7/201103778 A7[2011] EWCA Crim 2296
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
IN THE MATTER OF THE ATTORNEY GENERAL
REFERENCE Nos: 055/056/057/058/2011 UNDER SECTION
36 of the CRIMINAL JUSTICE ACT 1988
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/10/2011
Before
LADY JUSTICE RAFFERTY DBEMR JUSTICE MITTINGMR JUSTICE LLOYD JONES
Between
ReginaCrownDarren STEWARTDefendantJacek WLODEKDefendantChristopher HILLDefendantKieran WALSHDefendant
Mr J Pitter (instructed by Tates Solicitors) for StewartMr Dry (instructed by David Ake & Co Solicitors) for WlodekMr R Reed Solicitor Advocate (instructed by Grahame Stow Bateson Solicitors) for HillMr R G Mairs (instructed by Smithson Hinds Morris Solicitors) for WalshMr J Hallam ( for Attorney General) for the RespondentHearing Hearing date: 7 th September 2011
JudgmentLady Justice Rafferty :
[1]This is an application by HM Attorney General under S36 Criminal Justice Act 1988 for leave to refer sentences which he considers unduly lenient. We give leave.[2]On 17th June 2011 in the Crown Court sitting at Leeds Jacek Wlodek aged 30 was sentenced to 18 months’ imprisonment with a consecutive term of 6 months for perverting the course of justice. Darren Stewart aged 29 was sentenced to 2 years’ imprisonment, with a consecutive sentence of 5 years’ imprisonment for possession of a prohibited firearm. Each had entered guilty pleas at the plea and case management hearing. Christopher Hill aged 31 was sentenced to 4 years and 6 months’ imprisonment. He pleaded guilty on the morning of his trial. Kieran Walsh aged 30 was sentenced to 51 weeks’ imprisonment suspended for 2 years with a 200 hour unpaid work requirement. He pleaded guilty on the morning of his trial, the Crown having been notified in advance.[3]The conspiracy was between 30th June 2010 and 27th October 2010 together and with others unknown to import approximately 700kg of cannabis, with a street value of approximately £5 million. On 28th July 2010 Hill (using a false name) and Walsh at a storage facility in Leeds expressed an interest in Unit 5, and next day the estate manager received an email purportedly from Walsh but in fact from an email account operated by Hill. After negotiation, during which Hill, pretending to be Walsh, provided the latter’s address, home telephone number and bank account details, but his own mobile telephone number, a rental agreement was reached. The two conspirators on 2nd August 2010 handed over a banker’s draft. Walsh in his own name signed the rental agreement and in September and October payments were made in cash and a further banker’s draft until on 4th October 2010 a month’s notice was given.[4]A2B Online (UK) was hired by a Dutch company, Caroz BV, on six occasions to collect deliveries of one pallet each from a second Dutch company, ASK Plastics, to be delivered to a British company, MTC Trading, supposedly based in Unit 5. MTC’s name was simply used as a cover. In fact Bedford’s Transport Ltd made the first five deliveries to Unit 5 where Wlodek accepted them. One driver noticed that Unit 5 was empty except for an angle grinder. Wlodek hired a van on occasions corresponding with two deliveries, and Stewart hired a van on another.[5]The sixth delivery, of four drums for MTC Trading at Unit 5, came from the Netherlands and was intercepted at Felixstowe on 23rd October 2010. The drums appeared to contain oil, but were lead-lined and concealed compartments held 211 packages of cannabis, cannabis resin and “skunk” cannabis, in total 175.2kg of cannabis with a street value of approximately £896,550.[6]On 27th October 2010 a controlled delivery of four drums to Unit 5 was accepted by Wlodek using the name Hill. Wlodek placed the drums in the unit using a forklift truck. Shortly, Stewart arrived. Police officers then attended to search it. Stewart was arrested inside, Wlodek after an attempted escape. One drum had been cut open using the angle grinder. False pipes inside the unit showed that the previous deliveries had been of the same nature. The total weight of all deliveries was approximately 700kg of cannabis, with a street value of approximately £5 million.[7]Police officers then searched the homes of Wlodek, Stewart and Hill.[8]Wlodeck revealed 728.01g of cannabis with a street value of approximately £3,195, Stewart 2.959kg with a street value of approximately £25,350.[9]Walsh was arrested on 30th October 2010 as he disembarked from a flight from Amsterdam. Hill was arrested on 15th November 2010 having handed himself in to the police.[10]Telephone analysis supported inter-conspirator contact. Interviewed, Wlodek and Stewart denied involvement in any conspiracy to import drugs, Stewart saying that the drugs found at his address were to be sold to fund a course at college. Walsh accepted renting Unit 5 with Hill, saying he had done so in connection with a friend’s business. He accepted arranging two banker’s drafts, but denied involvement with the cash rental payment. He denied that the friend he had done this for was Hill, knowing Wlodek or Stewart and any involvement in the conspiracy.[11]Hill accepted renting Unit 5 with Walsh, saying he had done so in connection with a business he had set up with a friend. He accepted communicating with the estate manager using the email address in Walsh’s name and being friendly with Wlodek and Stewart. He denied any involvement in the conspiracy.[12]Wlodek and Stewart were remanded in custody, Hill and Walsh on conditional bail, upon which each remained until sentence.[13]Wlodek has no previous convictions or cautions.[14]Stewart has ten previous convictions for eighteen offences. Ten are driving offences; two are for obstructing a constable; one is for battery; four are for breaches of court orders or failing to surrender; and one, in 1999, is for possession of cannabis.[15]Walsh has four previous convictions for ten offences, six of them drugs offences. In 2002 he was fined £150 for possession of cocaine with intent to supply and for possession of cannabis, offences committed in May 2002. In 2003 he received concurrent community punishment orders of 125 hours for possession of cocaine and of cannabis in August 2002, offences committed with Hill. In 2004 he was fined £60 for possession of cannabis.[16]Hill has five previous convictions for twelve offences, five of them drugs offences. In 2003 he was punished as was Walsh for like offences. In 2004 he received concurrent community punishment orders of 100 hours and community rehabilitation orders of 12 months for driving while disqualified and possession of cannabis. In 2005 in the Crown Court sitting at Leeds he received a community punishment order of 80 hours for cultivating cannabis. In 2008 after a trial 50 weeks’ imprisonment was suspended for 2 years for being knowingly concerned in the evasion of a prohibition on the importation of cannabis, then a Class C drug.[17]Wlodek and Stewart pleaded guilty at the plea and case management hearing on 28th January 2011. A basis of plea for Wlodek, not accepted by the Crown, included the following assertions: i) in good faith he accepted employment to perform general labouring including unloading deliveries, cash in hand; ii) in August he became aware when the drums were opened and an unnamed third party removed the drugs that they held cannabis; iii) he raised the matter with his employer, who confirmed the position and offered him cannabis in lieu of wages which he accepted; iv) he continued in that role until 27th October, hiring a van on two occasions to dispose of emptied drums.[18]The Crown contended that he did not begin his employment in good faith, rather, he was involved from the beginning of the conspiracy so as to be at the warehouse and take deliveries.[19]He also pleaded guilty to perverting the course of justice. On 21st October 2010, driving whilst twice over the legal limit and in collision with another motorcar he fled the scene then reported his car stolen.[20]A basis of plea for Stewart, accepted by the Crown, included: i) the extent of his involvement was on two occasions collecting drugs delivered to the unit; ii) he was told to hire a van to pick up the drugs and he dropped them off where instructed; iii) he was paid in cannabis.[21]He also pleaded guilty to possessing a prohibited firearm, contrary to section 5(1)(aba) of the Firearms Act 1968. On 24th May 2010 he had been stopped by police officers with another man in a motorcar. The vehicle, which smelled of cannabis, was searched and four bags of cannabis seized. The home address of the other man was searched and what was believed to be Class A drugs seized. Stewart’s home was searched and revealed nine cannabis buds, self-seal plastic bags, a stun gun and a sawn-off .22 bolt-action rifle prohibited by reason of its length. He was on bail for that matter when he became involved in the index conspiracy.[22]A basis of plea for Walsh included: i) he allowed his details to be used by Hill to rent Unit 5; ii) he was unaware of the scale of the importation although he realised it was significant; iii) his profit was minimal.[23]The Crown did not accept the basis. It acknowledged that the case against him was that he had rented the unit with and at the request of Hill.[24]A basis of plea for Hill included: i) he was recruited to satisfy an outstanding debt from his previous, intercepted, importation; ii) he was required to find an unit to which the drums could be delivered and enlisted Hill to assist; iii) he neither financed nor organised the importation; iv) he was not involved in the onward distribution of the drugs; and v) he was out of the country at various times whilst the conspiracy was active.[25]The Crown did not accept the basis of plea. It averred that: i) as there had been similar deliveries of drums to other locations in the UK, there was an indication that there were others in the chain above Hill and that he was not the financer of the importations; ii) he was culpable for the onward distribution having been their importer albeit he did not know their precise destination; and iii) whilst it was accepted that he was out of the country on occasions during the currency of the conspiracy, this demonstrated that his role was significant and supervisory.

The Judge indicated that the issues inter partes over the bases made no difference to sentence.

[27]Pre-sentence reports were prepared. The authors of those in respect of Hill and of Walsh did not obtain the Crown’s case papers, or case summary.[28]Wlodek told the author that after placing an advertisement seeking work as a forklift truck driver he had been telephoned and invited to unload oil drums at the industrial unit as and when required. Whilst unloading he punctured a drum, and saw that it contained not oil but cannabis. His employers became suspicious that he had realised, and began to pay him in cannabis in lieu of wages. Wlodek said that he took cannabis mainly for pain relief because he had hurt his knee. In relation to the driving matters, he said he had argued with his fiancée and had decided to drive away from the argument. He panicked after a collision and decided to report the vehicle as stolen. The author concluded that he posed a low risk of re-offending and recommended a brief suspended sentence.[29]Stewart said that he was a cannabis user in debt to the tune of £1000 to his supplier who offered him a chance to clear the debt and make money by making two deliveries of cannabis. Stewart said that on two occasions he hired a van, took it to one place where he left it with someone, and then to another where he left it with someone else. He said he was paid £500, given 1kg of cannabis, thought he was just moving cannabis grown in the UK from one location to another, and had no idea he was involved in importation. He conceded that drugs “bring communities down” and are “linked to crime”. In relation to the sawn-off rifle he said that a violent former partner of his girlfriend had forced him to look after it some months before its seizure.[30]The author assessed him as posing a medium risk of harm to the public. Notwithstanding the minimum term provisions applying to the firearm offence, she recommended a community order with a supervision requirement of 9 months and an unpaid work requirement of 150 hours. In the alternative, she recommended a suspended sentence were only a custodial sentence appropriate.[31]Walsh said that he had been approached by Hill to help rent an industrial unit as the latter had electrical goods and clothes he wished to store then sell. Walsh said that he had helped since Hill claimed he had problems with his bank account. Walsh said Hill funded the monthly rental which Walsh passed on to the landlord, with no idea Hill was in truth using the facility for the storage and onward transfer of drugs. Walsh denied receiving any reward. He said he lived with his partner, worked locally as a chef and was due for promotion.[32]The author felt that whilst custody might be inevitable, nevertheless based on the agreed basis of plea, and his personal circumstances, the term could be suspended and be coupled with an unpaid work requirement.[33]Hill said he had committed the offence because he owed a drugs debt of £35,000. He had been convicted in 2008 of attempting to smuggle into the UK £70,000 of cannabis. Post-conviction he had been out of the jurisdiction returning in June 2010 because his mother was unwell. On his return, he said, he was told he had to pay off the debt and so agreed to facilitate the renting of an industrial unit to be used in the importation of cannabis. He said that he would have received no reward save the expunging of the debt.[34]The author felt a custodial sentence inevitable based on his pattern of offending, 2008 conviction, and the facts of the index offence.[35]The court’s attention was drawn to the guideline case of R. v. Aramah, 76 Cr.App.R. 190. Counsel for the Crown read aloud the words of Rose LJ in R.v. Ronchetti [1998] 2 Cr. App. R. (S.) 100 dealing with importation of 100kgs and more:
“Following a trial, the importation of 100kgs by persons playing more than a subordinate role should attract a sentence of 7 to 8 years. 10 years is the appropriate starting point for importations of 500kgs or more. Large importations would attract a higher starting point, which would rise according to the role played, the weight involved and all other circumstances of the case.”
[36]The Crown submitted that the case involved quantities in excess of 500kg.[37]The court found that Hill played the most important role.[38]Aggravating features are: i) the quantity of drugs; ii) the duration of the conspiracy; iii) the sophistication of the operation; iv) for Wlodek and Stewart part of the offence was committed on bail; v) for Walsh and Hill previous convictions for drugs offences; and vi) for Hill the offence was committed during the suspension period for an earlier offence of smuggling cannabis.[39]Mitigating features are: i) guilty pleas albeit late for Walsh and Hill; ii) for all save Hill limited, but important, involvement; and iii) for Wlodek previous good character.[40]The Attorney General in submitting that the sentences fail adequately to reflect the seriousness of the offences and the offenders’ culpability relies upon R. v. Aramah, 76 Cr.App.R. 190, as amended by R .v. Bilinski, 9 Cr.App.R.(S.) 360; R. v. Satvir Singh, 10 Cr.App.R.(S.) 402; and R. v. Ronchetti [1998] 2 Cr. App. R. (S.) 100; Attorney-General’s References Nos. 19, 20, 21 and 22 of 1997 (Reeves and others) [1998] 1 Cr. App. R. (S.) 164.[41]We have already rehearsed that part of Ronchetti relevant to this appeal, and in the light of the words of Rose LJ it is with one exception unnecessary to consider those authorities we list above. Attorney-General’s References Nos. 19, 20, 21 and 22 of 1997 (Reeves and others) [1998] 1 Cr. App. R. (S.) 164. repays scrutiny. A plea by the principal offender of guilty to an importation offence involving 102kg of cannabis would, post-trial, have been in the region of ten years. The four and a half imposed was unduly lenient and taking into account as was then the practice double jeopardy it was raised to seven years. For the second-in-command eight years post-trial would have been appropriate and three and a half years after a plea was raised to six. For the third and fourth offenders, couriers involved in preparation and administration, post-trial four years would have been appropriate and after plea two years would have been raised to two and a half, and as a consequence the court whilst finding the sentence unduly lenient chose not to intervene.[42]The Attorney General when invited to nominate terms of years for which he contended submitted as follows: Hill fell squarely into a Ronchetti bracket and his sentence should have been in the region of ten years. All others the AG agrees fall into the “subordinate but significant category” Rose LJ identified, so that terms in the region of 5-6 years for Wlodek and Walsh would be appropriate. Stewart falls to be distinguished since he pleaded guilty to a firearms offence attracting a statutory term of five years. In his case therefore totality requires consideration. The AG submits that the appropriate course would be a starting point of six years for the conspiracy, discounted for plea to four years, further reduced to take account of totality to three, and five years for the firearms offence to be served consecutively leading to an overall total of eight years. Wlodek had unpacked the drugs and moved them onwards along the marketing chain, but he was of good character and one of the first to tender a plea of guilty. For him the appropriate sentence the Attorney General suggests would be in the region of five to five and a half years. Walsh though he merely organised the rental had previous convictions and had tendered a late plea. The appropriate sentence for him too, the Attorney General submits, would have been between five and five and a half years.[43]In our judgment it is plain that Ronchetti read with the Attorney General’s references demonstrates without more that these sentences were unduly lenient. Indeed the oral submissions by counsel for each offender were before us the more effective for their realism and candour. That said, we have derived some further assistance from the consideration of the court in the Attorney General’s references to which we have referred. We have concluded that for Hill the appropriate sentence falls somewhat short of the ten years for which the Attorney General contends, and in his case the term of four and a half years will be quashed and for it will be substituted one of eight years. For Wlodek we quash the sentence of eighteen months and for it substitute a term of four and a half years. Six months consecutive for perverting the course of justice remains, making the total for him five years. For Stewart we quash the sentence of two years for the drugs offences and for it substitute one of three years, adopting the discounting method for which the Attorney General contends. The five year term for the firearm offence remains to be served consecutively, the total thus eight years. For Walsh we quash the suspended sentence and substitute for it a term of fifty one weeks’ imprisonment, giving some acknowledgement to his having retained his liberty not only since his remand on bail but consequent to the sentencing hearing. His sentence is thus one of fifty-one weeks imprisonment. His sentence will begin to run from the time he surrenders to custody. In the case of each, full credit for the full period of time spent in custody on remand and if applicable any time under curfew should it qualify under the provisions of S240A CJA 2003. So far as the court can tell, the total period for Wlodek and Stewart is 231 days but should this prove inaccurate we shall order an amendment so as to order the correct period.