Burdfield & Anor v R. [2011] EWCA Crim 2464

[2011] EWCA Crim 2464Case No 1101787A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WINCHESTER
Mrs Justice Nicola Davies
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/10/2011
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE SPENCERTHE HONORARY RECORDER OF MANCHESTER HIS HONOUR JUDGE GILBART QC(sitting as a judge of the Criminal Division of the Court of Appeal)
Between
AARON SCOTT BURDFIELDAppellantsSAMUEL JACOB D’CRUZEAppellantTHE QUEENRespondent
Charles Bloomer for Aaron Scott BurdfieldKatharine Spears for Samuel Jacob D’CruzeChristopher Parker QC and Iain Wicks for CrownHearing Hearing date: 18 October 2011
Judgment

Introduction

[1]On 25 August 2010 at the Crown Court at Winchester Samuel D’Cruze pleaded guilty to a count charging conspiracy to supply Class A drug (cocaine). On 7 September 2010 Aaron Burdfield pleaded guilty to the same count.[2]On 16 March 2011 they were sentenced by Mrs Justice Nicola Davies as follows:(1) Burdfield received a sentence of 4 years 3 months’ imprisonment, with a direction under section 240 of the Criminal Justice Act 2003 that 6 days spent on remand should count towards the sentence.(2) D’Cruze received a sentence of 4 years’ imprisonment, with a similar direction that 6 days spent on remand should count towards the sentence.[3]They appeal against sentence with leave of the single judge.[4]Co-defendants who had pleaded guilty to the same charge, other than James Vaughan, received sentences ranging from 2 years 4 months’ to 9 years’ imprisonment. Vaughan pleaded guilty to the same charge on re-arraignment and was sentenced to 16 years’ imprisonment.

The facts

[5]The facts to which we refer below are common ground as between the prosecution and the appellants, and were so before the judge. We treat them as common ground for the purposes of these appeals. James Vaughan has renewed his application for leave to appeal his sentence, and seeks to challenge many of these facts. Our account of the facts below is for the purposes of the present appeals, and will have no bearing on Vaughan’s application.[6]The conspiracy to which the appellants pleaded guilty involved a multi-million pound organisation based in Brighton and Hove. It involved trafficking cocaine into West Sussex and Hampshire between 2006 and the early part of 2010. The operation was controlled by Vaughan. It came to light following a fire at a block of flats in Portsmouth on the night of 16/17 September 2007. One of the occupants of the flat was a man called Field, who was a man to whom the network had supplied drugs. However, the conspiracy continued for 28 months after that fire, until Vaughan was arrested on 4 February 2010. The police enquiries into Field’s activities led them to the conspiracy being run by Vaughan. The Crown’s case was that over the period of the conspiracy a minimum of 108.4 kilograms of cocaine were involved with a value of £10.8 million and a profit of £5.4 million.[7]The extensive investigation led to other conspirators being identified and ultimately covert surveillance took place on Vaughan. Recorded conversations prior to his arrest revealed that Vaughan was going to extract money from Burdfield, one of his sub-dealers, by force if necessary. The police concerns as to the risk to a friend of Burdfield, who knew where Burdfield was hiding from Vaughan, and communicated implicitly to Burdfield, led them to arrest Vaughan.[8]Vaughan set up the drugs network in 2005 and was dealing in quantities of a kilogram of cocaine at a time He sold those quantities for about £30,000. He began to use others to distribute the drugs and to collect the money owed. He took to cutting cocaine with lidocaine and benzocaine which he imported from China. He would often give his dealers more cocaine than they wanted and push credit onto them. If the debt was not paid promptly, he would increase it arbitrarily and often used aggressive debt enforcement measures to those who owed him money. Sometimes, his debtors were told that they could write off part of the debt if they carried out jobs for him. Sometimes, this assistance would be given voluntarily but at other times it was given because of threats of extreme violence. He used a variety of different names during the conspiracy, changing his name by deed poll each time and between June 2006 and February 2010 some £272,013 was paid into his bank accounts.

Burdfield

[9]As mentioned above, Aaron Burdfield was a sub-dealer who was supplied by Vaughan.

The judge summarised Burdfield’s activities as following:

“On your behalf it was accepted that your involvement in the conspiracy was in the years 2008 and 2009 as identified by the prosecution, although it was said that your involvement was not the complete duration of those two years. By the time you met James Vaughan in 2008 you were a heavy user of crack cocaine. You bought from him an ounce at a time for £750 with a view to selling three-quarter’s of an ounce and consuming the remainder ounce. Your habit overpowered you and you used all the drug rather than selling it on. You quickly fell into debt to your supplier, owing some £2,000 to £3,000. When you did not pay off that debt you received a visit from James Vaughan. This was the first occasion that you met. In 2008 and 2009 James Vaughan permitted you to pay off your debt by running errands for him. You were not trusted to carry cocaine because you were too dependent on the drug but you collected and delivered cash on between 20 and 40 occasions. The sums involved range from between £2,000 to £70,000. You would also act as a driver and general dogsbody to James Vaughan. Some of the help given by you was entirely voluntary. On occasions you were subject to the threats and intimidation …”

The judge had mentioned those threats and intimidation earlier in her remarks:

“On one occasion James Vaughan told Aaron Burdfield that if he did not do as James Vaughan wanted his house would be burnt down with his mother inside. James Vaughan threatened to stab Aaron Burdfield, to cut him with a Stanley knife, to hurt his family and throw acid in his face. On another occasion he punched Aaron Burdfield in the face, broke his nose and threatened to rape his sister and burn her.”
She continued:
“By reason of those threats you did as you were told. In the summer of 2009 you damaged a vehicle belonging to James Vaughan who arbitrarily increased your debt to £62,055. The result of Vaughan’s actions was that you fled to Scotland with the assistance of a friend. It is of note that the friend who assisted your move to Scotland himself became the subject of threats from James Vaughan and it was the police who intervened and arrested James Vaughan before he was able to carry out any of his threats to your friend.”
[11]Burdfield pleaded guilty on a written basis of plea, the contents of which were not challenged by the prosecution:
“1. l accept that the account given in my interview under caution represents a true account of the extent of my involvement in the drug-related matters giving rise to the indictment against me. I will plead guilty accordingly. 2. However, without repeating the content of that interview word for word, I wish to emphasize the following matters: A. I was never more than a subordinate player in Vaughan c drug organisation. B. I was, at the relevant time, a drug addict. C. Any monetary profit I made from these activities was very limited. D.A broad (not intended to be wholly exhaustive) summary of my involvement (without recanting a word of my interview) is as follows: i: I drove Vaughan around for a period. ii. 1 paid some money into his bank account. iii. I was involved, as described in interview, in the matters relating to the fake ecstasy pills and Ibiza. iv: I was well aware that cocaine was being brought in from Alicante in large amounts, and bashed up (mixed with cuffing agents). v: I was also present at a transaction involving Vaughan in which a large amount of cocaine was divided up into 3 kg lots, and between various people. vi: As detailed in interview, I, at Vaughan’s behest, claimed back from Sussex police money found at Sam D’Cruze’s house, which was in fact Vaughan drug money.” i: I drove Vaughan around for a period. ii. 1 paid some money into his bank account. iii. I was involved, as described in interview, in the matters relating to the fake ecstasy pills and Ibiza. iv: I was well aware that cocaine was being brought in from Alicante in large amounts, and bashed up (mixed with cuffing agents). v: I was also present at a transaction involving Vaughan in which a large amount of cocaine was divided up into 3 kg lots, and between various people. vi: As detailed in interview, I, at Vaughan’s behest, claimed back from Sussex police money found at Sam D’Cruze’s house, which was in fact Vaughan drug money.”
[12]Burdfield had provided assistance that fell to be taken into account pursuant to section 73 of the Serious Organised Crime and Police Act 2005. In addition to information, he had made a witness statement and was prepared to testify.

The judge said:

“Before this court there is a Pre-Sentence Report and a letter written in pursuance of your status as a section 73 SOCPA witness. On your behalf it was said that in an interview over a year ago you made full admissions not only of your role but that of others, in particular James Vaughan. It is said that you have provided this information at great risk to yourself and your family in a case where you have already been the subject of threats and violence from James Vaughan. It is clear from the section 73 letter that you have provided considerable assistance. Had a trial taken place you would have given evidence for the Crown. You are now aged 33. You have a significant history of offending. You have been before the courts on 13 previous occasions. It is right to record that some of the offences relate to driving, but there are many offences of obtaining property by deception, theft, handling stolen goods. In August 2003 for possession of Class A drug cocaine and possession of Class B drug cannabis, together with other offences involving dishonesty, you were subject to a drug treatment and testing order for two years. Since that time you have been before the court on three further occasions. In the Pre-Sentence Report it is stated that during the past year you have turned your life around by stopping the taking of illicit substances, finding accommodation, securing employment and rebuilding family relationships. When your counsel addressed the court the point was made that this is the first proper employment you have undertaken since the age of 18.”
[13]In sentencing Burdfield,

the judge said:

“It is clear from the section 73 letter that you have provided considerable assistance, and, as I have already said, had a trial taken place you would have given evidence for the prosecution. To reflect your role within the organisation, both in terms of its length and activity, my starting point for your sentence is eight and a half years. I discount that to reflect the assistance which you have provided as identified in the section 73 letter and your early plea of guilty.”
As mentioned above, the judge discounted the sentence to one of 4 years and 3 months, i.e., by one half.

D’Cruze

[14]Samuel D’Cruze had been a man of good character. He accepted that the prosecution’s account of his role was correct. He met James Vaughan when he was a car dealer and a legitimate arranger of finance in Brighton. In 2007, Vaughan, who knew about the poor state of D’Cruze’s business offered him the opportunity to deal in cocaine. D’Cruze agreed to sell small quantities and to return the profit to Vaughan. In 2008 D’Cruze became aware that an acquaintance of his was being threatened by James Vaughan for moneys. Because he believed he had a good relationship with Vaughan he asked him to back off his friend. This approach backfired: he was told by Vaughan that the debt was transferred to him. The quantities began to increase. There were increasing threats from James Vaughan D’Cruze genuinely feared harm for himself and his family from James Vaughan.[15]On 24 October 2008 D’Cruze’s premises at 12 Garland Point in Shoreham were searched. The police found a shoebox containing £16,000 in cash, a notebook and a diary. Vaughan had left them with D’Cruze for safe-keeping. The notebook and the diary were handwritten deal lists, records of sub-dealers who owed money or to whom cocaine had been given. As a result of this seizure by the police, Vaughan was angry and threatened both D’Cruze and his family.[16]In summary, D’Cruze’s role could properly be described as that of a subordinate. He was a low level retail dealer.[17]Vaughan fled the country in November 2008 and asked D’Cruze to take over the running of the operation. It is said on behalf of D’Cruze that he turned his phone off and extricated himself from the organisation, and did nothing to further the enterprise during the time that Vaughan was out of the country. That was consistent with the prosecution account that when D’Cruze was left in charge during that time the organisation foundered. It was said on behalf of D’Cruze that since that time he had done all he could to distance himself from the organisation and criminal behaviour.[18]On 2 July 2010 D’Cruze attended a preliminary hearing, and on 25August 2010 entered a plea of guilty. It was on that day that he attended his first cleansing interview. At the time he entered his plea and attended the interview several of his co-defendants were contesting the charges against them. The plea resulted in a real and genuine risk to himself and his family.[19]D’Cruze is now aged 37. In the Pre-Sentence Report his risk of re-offending was assessed as low. It was said on his behalf he was unlikely to be before the court again. Before the judge were testimonials from family and friends which spoke to his positive character and the business which he had been running. It was implicit in what was contained in these references that custody negatively impacted both upon his business and his family.[20]In sentencing D’Cruze, the judge said that her starting point for his sentence was eight years. She said that she discounted that period to reflect his plea of guilty and all that she knew about him. As in the case of Burdfield, she discounted her starting point by one half, and as stated above the sentence she imposed was four years’ imprisonment.

The submissions of the appellants

[21]Although there are factual differences between the appellants, their submissions were substantially the same. They submitted:(1) That the judge’s starting points were too high.(2) That the judge failed to apply the 2-stage discount, for plea of guilty and for assistance pursuant to section 73, required by the Act and by the decision of this Court in Blackburn [2007] EWCA Crim 2290.(3) The judge failed to reflect the discounts to which the appellants were entitled in the sentences she imposed.

Discussion

[22]We accept the appellants’ submissions.[23]Given that D’Cruze was, as the judge accepted, essentially a low level retail dealer, and given the part played by fear and intimidation in his offending, in our judgment a lower starting point was appropriate than the 8 years identified by the judge.[24]The part played by Burdfield was more serious, and was of greater duration, but in his case too we consider that the starting point identified by the judge was too high. He too was entitled to recognition of the part played by violence and intimidation in his offending, which led him to flee to Scotland. He was not of good character: his previous convictions were summarised by the judge in the passage from her sentencing remarks cited at paragraph 12 above.[25]Furthermore, in the case of both of these appellants the judge failed to comply with the requirements of either subsection (3) or subsection (4) of the 2005 Act. She should have identified both the discounts to which the appellants were entitled. We shall do so in a separate judgment. As a matter of arithmetic, it does not matter in which order the discounts are applied, but they must be identified and separately applied. The terms of section 73(3) indicate that the discount apart from section 73 should be identified first. It may be that this failure led her to amalgamate separate discounts, and thereby to reduce them beyond the amounts to which the appellants were entitled.[26]In consequence of the matters to which we have referred, the sentences imposed by the judge on these appellants did not reflect all of the matters on which they were entitled to rely and were manifestly excessive. The sentences which we consider appropriate will be identified in a separate judgment that will be confidential to the prosecution and the appellants and those representing them, unless otherwise ordered by this Court. We shall quash the sentences imposed by the judge and substitute the sentences we consider appropriate as set out in our separate judgment. To the extent identified in that judgment, these appeals will be allowed.[27]Finally, we express our appreciation for the clear and cogent submissions of counsel for the appellants and for the very considerable assistance of counsel for the Crown.