Litwinski & Ors v CPS [2011] EWCA Crim 727

[2011] EWCA Crim 727Case No 201003745 D3,201003192 D3, 201000475 D3,201003956 D3, 201000460 D3,201000461 D3, 201000463 D3,201000478 D3, 201001256 D3,201003196 D3, 201003370 D3,201004717 D3, 201000465 D3
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Liverpool Crown Court on 18th May 2010 before HHJ Brown
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/03/2011
Before
LORD JUSTICE PITCHFORDMR JUSTICE TREACYHHJ KRAMER QC
Between
LITWINSKI & ORSAppellantsCPSRespondent
Appellants:Roderick Johnson QC and Jimmy Vakil (instructed by Messrs Golden, Solicitors) for Michael HailwoodTayab Khan (instructed by Middleweeks, Solicitors) for Karol SiedjaJames Lake (instructed by Tates, Solicitors) for Delroy PowellMark Stephenson (instructed by Pearson Fielding, Solicitors) for James BoyleChristopher Harding (instructed by TNT Kelly, Solicitors) for Krysztof KownackiMark Stuart (instructed by Messrs Furley, Solicitors) for Natalie NichollsJason Smith (instructed by Burton Copeland, Solicitors) for Karen ForshawTom Mitchell and Sarah Holt (instructed by Forbes, Solicitors) for Nyome HueRichard Gray (instructed by The Registrar) for Majeed ShahGordon Ross (instructed by Blackfords, Solicitors) for Jason Bowley (appeared pro-bono)Andrew Smith and Stephen McNally (instructed by Morgan, Brown & Cahill, Solicitors) for Lucasz LitwinskiTomasz Wisniewski and Mohammed Bawla –were unrepresentedRespondent:Brian Cummings QC and Mark Ainsworth (instructed by CPS)Hearing Hearing date : 9 March 2011
JudgmentLord Justice Pitchford :
[1]On 9 March 2011 the court had before it the appeals against sentence with leave of the single judge of the following appellants: Lucasz Litwinski, Karol Siejda, James Boyle, Krzysztof Kownacki, Majeed Shah, and Nyome Hue. The court considered the renewal of applications for leave to appeal against sentence following refusal by the single judge from the following applicants: Tomasz Wisniewski, Delroy Powell, Mohammed Anwer Bawla, Natalie Nicholls, Karen Louise Forshaw, Jason Michael Bowley and Michael Hailwood. The issues in the appeal[2]The court will arrange its judgment as follows. We shall describe in general terms the criminal enterprises which give rise to these appeals and applications. We shall identify previous decisions of the court to which we have been referred and assess their effect upon the issues which arise in the present cases. Finally, we shall consider each appeal and each application in more detail by category of participant. These appeals and applications raise four essential issues. First: what was the appropriate starting point for those at or near the top of the criminal organisation? Second: where within the organisation should each appellant or applicant be placed? Third: what was the appropriate starting point for each appellant or applicant? Fourth: what was the appropriate discount for pleas of guilty? The criminal enterprises proved[3]At the heart of the criminal activity were four conspiracies charged in counts 1-4 of an indictment settled at Liverpool Crown Court: Count 1: Conspiracy between 1 September 2006 and 19 October 2008 to supply controlled drugs of class A namely cocaine and/or MDMA contrary to section 4(1)(b) Misuse of Drugs Act 1971. Count 2: Conspiracy between 1 September 2006 and 19 October 2008 to supply controlled drugs of class C namely cannabis contrary to section 4(1)(b) Misuse of Drugs Act 1971. Count 3: Conspiracy between 1 September 2006 and 7 August 2007 to transfer prohibited weapons in contravention of section 5 Firearms Act 1968. Count 4: Conspiracy between 1 September 2006 and 7 August 2008 to transfer prohibited ammunition in contravention of section 5 Firearms Act 1968. Substantive offences were charged in counts 5 - 9 of the indictment to some of which we shall need to refer later in this judgment. Tiers of involvement[4]The hub of the conspiracies was Amsterdam. Between the autumn of 2006 and the autumn of 2008 huge quantities of drugs were sourced for transfer from South America, usually to Amsterdam, for onward importation to the UK, but sometimes by direct importation to the UK. Importations to the UK took place by two methods, first by the use of specially adapted vehicles using cross-channel ferries and, second, by the use of human couriers or “mules” who were required to ingest quantities of 10g bullet-shaped pellets of cocaine for travel by air or road and ferry.[5]Three men were by common consent in charge of the operation in Amsterdam during their periods of involvement and represent the top tier of the organisation: Dion Lee from Lancaster, Michael (or Marcus) Williams from Croydon and Michael Hailwood from Liverpool. Hailwood is an applicant. Lee is at large. Williams is serving a sentence of imprisonment in Holland. They spent most of their time in Amsterdam. They were the key players in sourcing the drugs and arranging their onward transmission from South America to Croydon in London, to Preston and Lancaster in Lancashire, to Leeds and Bradford in Yorkshire, and to Arbroath in Scotland.[6]The second tier of involvement concerned those who organised for their Amsterdam principals the movement of drugs from South America to Amsterdam or from Amsterdam to the UK. Those involved at this level included Jason Bowley, Tomasz Wisniewski and Roman Bloch.[7]The third tier of involvement was located in the UK centres of distribution. It was necessary for cash to be moved to Amsterdam to pay for the drugs and for the wholesalers in the UK to arrange collection. Ivan Hue was the principal organiser of the Lancashire connection based in Preston although in Lancaster the principal players were Mohammed Bawla and Majeed Shah. Ivan Hue’s network in Preston included his sister, Stella Taylor. In her turn Stella Taylor recruited her sister Nyome Hue, her close friend Natalie Nicholls and Karen Forshaw.[8]Head of the Yorkshire connection was Delroy Powell.[9]In Arbroath the chief organiser was Edward McIntosh. He managed a group comprising Leslie and Martin Graham, James Boyle, Lucasz Litwinski and Karol Siejda.[10]While there were separate destinations for the drugs in the UK there were frequent communications between the regions. They met with each other and in Amsterdam.[11]Tomasz Wisniewski recruited others to act as couriers including Wioletta Sadowska and Krzysztof Kownacki. Some of those recruited as couriers gained in status in the organisation.[12]Some of the important participants sentenced in respect of these matters who have either not sought leave to appeal or who have abandoned applications previously made are: Roman Bloch pleaded guilty on re-arraignment to count 1 and was convicted on counts 3 and 4. He was sentenced to a total term of 24 years imprisonment. Ivan Hue pleaded guilty on counts 1 and 2 and was sentenced to 24 years imprisonment. Stella Taylor was convicted on count 1 having pleaded guilty to count 2 and was sentenced to a total of 21 years imprisonment. Edward McIntosh pleaded guilty on re-arraignment to counts 1 and 2 and was sentenced to a total of 16 years imprisonment. Leslie Graham pleaded guilty on re-arraignment to count 1 and was sentenced to 14 years 8 months imprisonment. Martin Graham pleaded guilty to counts 1 and 2 and was sentenced to 11 years imprisonment. Scale of importations[13]Those selected to act as “mules” were nationals of East European countries. At least 70 inward journeys were made to the United Kingdom each one of which imported about ½ kilo of cocaine at 100% purity. The organisers were therefore responsible by this means for importing not less than 35 kilos of cocaine at 100% purity. There was a team of no fewer than 30 mules routinely employed for this purpose.[14]The second method of importation was by vehicle from Amsterdam, via sea crossings to the UK. It has not been possible to calculate with any precision the quantities of class A and class C drugs imported in this manner but the judge found that there were not fewer than 5 such journeys and probably 7. The quantities capable of transport by this means were substantially greater than by individual journeys made by the mules.[15]We shall describe the development of vehicle importation. The acquisition and movement of the vehicles demonstrates the closeness of the UK participants to the importations and to the co-operation between some of the UK distributors. Fiat Multipla ST51 CHH was purchased in Arbroath by McIntosh and Litwinski. It was registered to and insured in the name of Stella Taylor. Wisniewski flew to Manchester from Amsterdam and consulted Bawla and Shah who were also in contact with Ivan Hue and Dion Lee. Wisniewski drove the car to Holland where it was converted to a drugs carrier. Stella Taylor, Natalie Nicholls and Karen Forshaw flew to Amsterdam with cash. On 15 December 2006 they brought the vehicle back to the UK with a consignment of drugs on board. The vehicle was returned with cash to Holland in January by the same 3 women. On 11 January 2007 they returned with another consignment of drugs in a further Fiat Multipla, Y708 SSL.[16]On 6 August 2007 Wioletta Sadowska, recruited by Wisniewski from his village in Poland, and Krzysztof Kownacki were arrested on their arrival in the UK with ST51 CHH. A concealed compartment contained 7.35 kilos of cannabis and 5,100 tablets of MDMA. Relevant to counts 3 and 4, also recovered were 3 self loading Glock pistols, a self-loading Beretta pistol, two Ruger revolvers, an a Taurus revolver and 1,000 rounds of live ammunition. The volume and weight of contraband discovered at this seizure demonstrates the capacity of the vehicles to achieve substantial importations. This importation had been destined for Delroy Powell in Leeds.[17]Bawla and Shah arranged the purchase of W966 JSC from a dealer in Blackpool in October 2006. The next day they arranged its ferry crossing from Hull to Holland. There was much telephone traffic between the North West of England and the organisers in Holland. The vehicle was used to make an importation to Lancashire in November 2006. It was accompanied by Lucasz Litwinski and two other men. Telephone traffic indicated the involvement of Wisniewski, Bawla, Shah, Roman Bloch, Stella Taylor, Ivan Hue and Dion Lee. Wisniewski shadowed the vehicle. It was returned to Holland by the same crew. Litwinski then flew to Edinburgh with a mule (Wachowick) where he made contact with McIntosh and Dion Lee.[18]Y708 SSL was purchased in Arbroath in December 2006 by James Boyle and taken to Holland. It returned to the UK on 10 January 2007 accompanied by Stella Taylor, Natalie Nicholls and Nyome Hue. In February 2007 it was insured in the name of Roman Bloch and returned to Holland accompanied by telephone traffic between Bloch, Shah, Ivan Hue, Stella Taylor and Dion Lee. Bloch accompanied the vehicle on the ferry. On 4 August 2008 the vehicle was recovered by the Dutch police in Amsterdam when it was being driven by Hailwood. It was found to have a secret compartment identical to that found in ST15 CHH. The P&O ticket in the name of Bloch was still in the glove compartment. Beneath the rear seat was found a single bullet-pellet containing 9.68 grams of cocaine. Its manufacture was identical to samples recovered following the arrest of 2 mules, Kargul and Sabrovas who had previously arrived at Edinburgh airport having consumed 61 and 45 such pellets respectively.[19]Fiat Multipla X129 BUJ was purchased by Stella Taylor assisted by Nyome Hue, her sister, in December 2006. The car was registered to Taylor and later insured in the name of Bloch. The car was driven to Holland by Taylor and Demsie Hamilton accompanied by Nyome Hue. En route Taylor was in repeated contact with Dion Lee. The vehicle was found by the Dutch police at a lock-up garage in Amsterdam. It was detained on 14 March 2007. It had been stripped. When Taylor was informed that the vehicle had been seized she claimed to have sold it 2 weeks earlier to an unknown man. There followed calls from Lee to Taylor and on the same day Taylor travelled with Natalie Nicholls to Amsterdam. She (but not Taylor) attended the police compound with 3 men, one of whom was Lee. On the following day Wisniewski flew from Malta to Holland and contacted Taylor by phone. The vehicle was recovered by Taylor in July 2007. Hailwood made the arrangements for its collection by a transporter.[20]Fiat Multipla X342 MGA was purchased in December 2006 and driven to Holland. In November 2007 Michael Williams was in possession of the vehicle.[21]A Citroen C5 BAU2 9FT, Polish registered, was driven to the UK by Wioletta Sadowska and Krzysztof Kownacki on 25 January 2007. Cocaine had been concealed behind its sills in tubes which could be removed if the vehicle’s front wheels were placed in full lock. The drug was destined for Lancashire. Preparatory arrangements were made by Wisniewski, Taylor, Bloch and Dion Lee. The consignment was met by Taylor in Croydon. She maintained telephone contact with Dion Lee and her brother Ivan Hue. On her return journey to the North West with the drugs she was in contact with Bawla, Shah, and Ivan Hue. Bawla and Hue were in turn in touch with Lee.[22]On 26 March 2007 the same vehicle returned to the UK this time bearing drugs for Delroy Powell in Leeds.[23]A Citroen C5 HD51 HBE also intended for traffic to the UK was stop checked by the Dutch police in January 2007 accompanied by Wisniewski and Kownacki. In the event it was never used for importation.[24]In November 2006 Stella Taylor insured a Peugeot 206. The vehicle was driven to Holland 6 days later. En route Taylor was in contact by telephone with Ivan Hue and Dion Lee. In December 2006 she returned with another Peugeot 205 T356 FGD with a consignment of drugs. On the way to Lancashire she was in contact with Natalie Nicholls, Nyome Hue, Dion Lee and Ivan Hue. Ivan Hue was in turn in conversation with Lee, Bawla and Shah.[25]The prosecution case was that there were 5 importations by vehicles at least. The importations were preceded by what the prosecution called “cash runs” which involved taking money from the UK to Holland or transfers within the UK. The return journeys from Holland might involve mule runs supervised by the conspirators. One such run took place in October 2006 when Slawomir Szematowicz flew from Amsterdam to Manchester with Kownacki. The flight was booked by Kownacki using Mohammed Bawla’s home address.[26]On 8 March 2007 an important meeting took place between several players at the Toucan Hotel in Haarlem, Amsterdam. Present were Dion Lee, Michael Williams, Stella Taylor, Nyome Hue, Lucasz Litwinski, Tomasz Wisniewski, Wioletta Sadowska and Krzysztof Kownacki. Hailwood was nearby and in contact by telephone. During the meeting Lee made 6 calls to Delroy Powell. Two months later Powell visited Amsterdam twice within a period of 6 days. Guidance from the Court of Appeal[27]We are reminded that in Aroyewumi [1995] 16 Cr App R (S) 211 Lord Taylor CJ announced a development in the guidelines originating with Aramah [1982] 4 Cr App R (S) 407 and then Bilinski [1987] 9 Cr App R (S) 360. At page 216 Lord Taylor said:
“Accordingly, in our judgment, for the guidelines laid down in Bilinski in respect of class A drug importations, there should be substituted the following: where the weight of the drugs at 100% purity is of the order of 500 grams or more, sentences of 10 years and upwards are appropriate and where the weight at 100% purity is of the order of 5 kilograms or more, sentences of 14 years and upwards are appropriate.”
In Attorney General’s References Nos 117 and 118 of 2005 (Byfield and Swaby) [2007] 1 Cr App R (S) 22 the court expressed the view that offenders who were convicted of conspiring to import 14.45 kilograms of cocaine at 100% purity should expect a sentence of not less than 20 years. The method used was similar to that employed in the current case. There were in all 6 consignments over a period of 12 months. The offenders were in charge of the operation and employed couriers to swallow the drugs for importation. Both offenders were of good character with consequential but limited personal mitigation.[28]In Lowe [2003] EWCA Crim 3182 Rose LJ, VP, said at paragraph 31:
“31. ... We have considered a number of authorities in recent years ... no useful purpose would be served by a close analysis of the differing facts and circumstances of these authorities. What they show, relevant for present purposes, is that, first, this court has contemplated the possibility following a trial, of a sentence of 30 years imprisonment for a dominating mind in relation to conspiracy to import massive quantities of class A drugs; and, secondly, even if others were involved at a higher level, 24 years is not an inappropriate starting point for one ... playing a senior national and international role in relation to massive importations of heroin.”
[29]In K [2003] 1 Cr App R (S) 6 at page 22 the court confirmed that in exceptional cases a starting point of 30 years or more is appropriate.[30]Other decisions to which the court has made reference include Attorney General’s References Nos 99-102 of 2004 (Whiteway & Others) [2005] 2 Cr App R (S) 82 at page 505, Brookhouse & Others [2004] EWCA Crim 3471, Attorney General’s References Nos 5-8 of 2003 (Davis & Others) [2003] EWCA Crim 3185, Attorney General’s Reference No 2 2006 [2006] 2 Cr App R (S) 617, Kennedy & Morris [2006] EWCA Crim 435 and Tourh [2009] EWCA Crim 874.[31]Sentences for the unlawful commercial supply of firearms to criminals will attract sentences even after pleas of guilty ranging from 9 years to an indeterminate sentence depending upon the quantity, the nature of the enterprise, the intention of the individuals and the consequences of supply: see Avis & Others [1998] 2 Cr App R (S) 178 and Wilkinson [2009] EWCA Crim 1925.[32]We turn now to deal with the cases of the individual appellants and applicants. We shall begin with those at or near the top of the organisation. Tomasz Wisniewski[33]During the two year course of the conspiracy the applicant was in regular contact with the organiser in Amsterdam, Dion Lee; also with the major players in Lancashire and Scotland, and with the couriers. He acted as a link between the governing tier, those involved in the importations and senior members of the Lancashire connection. He also journeyed to Scotland. He was involved in several importations both by mules and with vehicles. He took part in the meeting at the Toucan Hotel. He shared a flat in Amsterdam with Michael Williams and Dion Lee. He was arrested in Poland under a European arrest warrant. He pleaded guilty at Liverpool Crown Court on 5 February 2009 to counts 1 and 2. On 5 May 2009 he pleaded guilty on re-arraignment to counts 3 and 4. He was sentenced by HHJ Mark Brown on 17 December 2009 to 16 years imprisonment (count 1), 8 years imprisonment concurrent (count 2), 7 years consecutive (count 3) and 2 years concurrent (count 4).[34]The judge found that the applicant had a very important role in the conspiracies as a trusted link man. He was personally involved in loading guns and ammunition and for making arrangements for their transfer to Leeds. He had recruited Roman Bloch and Wioletta Sadowska, the latter of whom made a statement implicating others. He travelled regularly between the United Kingdom and Amsterdam. Mr Wisniewski was informed by the judge that despite the late plea to counts 3 and 4 he would receive a significant discount. He was sentenced to 23 years imprisonment in all.[35]The applicant is aged 35. He has not previously been convicted in the United Kingdom and we know nothing of his position in his native Poland. It is probable that the judge took a starting point of 24 years for sentence on count 1 and gave the applicant full one-third credit. In our view, the starting point cannot be regarded as excessive for this level of offending. The judge, exceptionally because the applicant pleaded guilty on the day of trial, allowed a discount of 25% for the plea of guilty to count 3 indicating a starting point of just under 9 years. It is argued in writing on behalf of the applicant that since the importation on 6 August 2007 took place on the same occasion as the importation of firearms it was not appropriate to order the sentences to run consecutively; alternatively, the total should have been trimmed to give full weight to the principle of totality. We do not accept these submissions. The sentences imposed were principled and correct. The application is refused. Michael Hailwood[36]Michael Hailwood, who is now aged 39, pleaded guilty on re-arraignment to count 1 in the indictment. On 18 May 2010 HH Judge Brown sentenced him to 22 years imprisonment. It had been the prosecution case that in the early stages of the conspiracy the applicant had participated while on home leave from a sentence of imprisonment in Holland. However, the applicant pleaded guilty on the basis that he was not involved until his release on 25 February 2007. He disclaimed any involvement in the vehicle importations although it will be recalled that he was involved in the transport of one of the Fiat vehicles detained by the Dutch police. Hailwood’s role was to arrange and control the organisation of mules for importing cocaine from South America for onward sale in the United Kingdom. The judge drew attention to the quantity of drugs imported to the United Kingdom in this fashion, and to the fact that the applicant had boasted of his 80 lads in Liverpool and another 80 in London prepared to become involved in this trade, although he preferred to use East Europeans. The judge found that the applicant ran a network of at least 30 couriers. His organisation involved the provision of safe houses and shadows or minders for the mules. The mules themselves were putting their lives at risk in consequence of the applicant’s exploitation of young people who were desperate for money. Although the applicant had not been involved in firearms offences he was at the very top of the organisation of cocaine importation to the UK. Indicating that he would apply a 20% discount for his plea of guilty the judge imposed a sentence of 22 years suggesting a starting point of 27½ years.[37]Mr R Johnson QC submitted that the starting point was too high. In particular, there was at least a fledgling courier organisation before Hailwood was released from prison. It was accepted, however, that Hailwood commenced work with enthusiasm and rapidly promoted himself within the organisation. He visited South America on two occasions for 2 weeks and 10 days respectively. Bowley, who was recruited by Williams, worked for Hailwood.[38]Mr Johnson submitted that the discount of 20% was inadequate. Wisniewski, who had already pleaded to counts 1 and 2 in the indictment, was told by the learned judge that if he pleaded guilty on the day of his trial to counts 3 and 4, the firearms offences, he would receive a discount of 25%. Finally, Mr Johnson submits that no allowance was made for a period of 2 months which Hailwood spent in custody awaiting extradition.[39]In his sentencing remarks, the judge considered all significant matters (not including perhaps the period spent on remand in Holland) including Mr Johnson’s submission as to the appropriate discount. There were particular reasons why the judge was prepared to give a public indication to Wisniewski of an enhanced discount which did not apply to this applicant. Wisniewski had already pleaded guilty to counts 1 and 2 and would be receiving a consecutive sentence for the firearms offences. The judge had held himself ready to be persuaded that Hailwood should receive a greater discount than 20% but was not persuaded by Mr Johnson’s argument. In our view the extreme seriousness of this applicant’s position lies in the scale of the operation for which he was responsible for much of the period of the conspiracy and the corruption of others recruited to it. We see no justifiable complaint in respect of the starting point adopted by the judge, or in the discount made from it for a guilty plea, or the lack of an explicit allowance for the period of detention in Holland. The sentence passed not manifestly excessive. The application is therefore refused. Jason Bowley[40]Jason Bowley, now aged, 36 pleaded guilty at the PCMH on 13 November 2009 to count 1 of the indictment. He was sentenced by HHJ Brown to 15 years 4 months imprisonment. Mr Bowley was sentenced on the basis that he was not involved in vehicle importation. He had been recruited by Michael Williams in August or September 2007. The judge found that he quickly became a close associate both of Michael Hailwood and Michael Williams. He was their trusted assistant in the mules operation. He was entrusted with £25,000 to take to Argentina for the purchase of cocaine. He travelled in South America to set up arrangements for the movement of drugs and money. He was by virtue of his position close to the source of the drug. He participated for a period of 5 months. He would, the judge decided, receive full credit for his plea.[41]Twelve character references were handed to the judge from those who had known the applicant for a long period, some since he was a child. He had been a good friend, was well liked and had impressed others with his caring manner. While on remand he had enjoyed an enhanced status as a race relations representative.[42]It was submitted by Mr Ross that the judge must have taken a starting point of 23 years which made an insufficient distinction between the applicant and Michael Hailwood, his superior in the conspiracy, who was also involved for a long period of time. The starting point in Hailwood’s case was 27½ years. We accept Mr Ross’s submission that Bowley was not in the same category as Hailwood. He was however a fully trusted assistant who used the autonomy granted to him in South America and headed the Amsterdam organisation close to its source in Argentina. Bowley is responsible for a similar level of corruption of others in the responsibility he accepted. In the view of this court the nature of the activity in which the applicant was personally deeply involved makes personal mitigation of extremely limited value. We are un-persuaded that there was a significant inconsistency in the judge’s approach to sentence. This application is dismissed.[43]We turn next to consider the sentences of those who brought drugs into the United Kingdom. They are Lucasz Litwinski, Karol Siejda, Krzysztof Kownacki, Nyome Dawn Hue, Natalie Nicholls and Karen Forshaw. Lucasz Litwinski[44]Lucasz Litwinski is now aged 24. He pleaded guilty on 15 June 2009 to counts 1 and 2. The judge informed him that he would receive a discount of 27% against his sentence because he did not plead guilty at the first available opportunity (which would have been at the pre-trial hearing in April 2009 when the judge informed the defendants that the clock had started to run). Litwinski was sentenced to 15 years 4 months in respect of count 1 and 7 years concurrent in respect of count 2. The judge reflected the appellant’s basis of plea in his sentencing remarks.[45]Litwinski arrived in the UK in 2006. He met Edward McIntosh while looking for work in Holland. He was offered employment and accommodation in Scotland. Within a short time he became a mule making journeys between Amsterdam and Edinburgh on a number of occasions in late 2006. However, his role became more influential as time passed. He assisted in the purchase of vehicle ST51 CHH and made travel arrangements for the human mules. On 27 November 2006 he travelled in a Fiat Multipla from Amsterdam to Preston with class A and class C drugs concealed within it. Temporarily, Litwinski returned to Poland but he was invited back to Scotland by McIntosh. He continued to act as a courier and in 2007 ferried money and documents on command. He was present at the Toucan Hotel meeting in March 2007 as the Scottish representative. By this time the appellant had become a supervisor. He travelled to and from Amsterdam on a large number of occasions. His job was to shadow mules bringing cocaine into the UK. In the course of his participation he was regularly in contact with the organisers in Amsterdam, Dion Lee and Michael Hailwood.[46]The appellant spent a considerable time (751 days) on remand in custody. During that time he made a useful contribution to the prison community. He was a foreign national prison representative and a listener. He had undertaken work on victim awareness.[47]Mr Smith submitted that a starting point of 21 years after a trial in Litwinski’s case was excessive. It was acknowledged that he was a supervisor but he was under the control of others. Mr Smith pointed out that if the starting point for Hailwood was too high then, correspondingly, so was the starting point for Litwinski. We have rejected the argument that Hailwood’s starting point was excessive. Furthermore, in Litwinski’s case the underlying argument is not made out. Litwinski was involved in a variety of activities. He rose within the organisation and became a trusted manager and supervisor of mules. We do not view a starting point of 21 years after a trial as excessive. Accordingly, his appeal is dismissed. Karol Siejda[48]Karol Siejda is now aged 21. He pleaded guilty on 5 February 2009 to counts 1 and 2 in the indictment. He was sentenced to 12 years detention in a young offender institution upon count 1 and 6 years concurrent upon count 2.[49]Siejda was recruited by Litwinski to act as a mule. He carried both drugs and money to and from Amsterdam and Edinburgh. He progressed to become a minder and shadow for the mules. The appellant’s involvement lasted from December 2007 until March 2008. He made a witness statement to the police in which he was frank about his involvement. Pleas of guilty were entered at an early stage, but when legal aid was transferred an application was made to vacate the pleas. The judge heard the application and rejected it. During the course of the hearing the judge was made aware of Siejda’s own addiction to drugs for which he had received treatment in hospital in Poland. The appellant raised the defence of duress, his mental health and the language barrier. No psychiatric evidence was produced to the judge at the hearing but Mr Khan has invited us to take into consideration a psychiatric report prepared for the appeal hearing. It provides confirmation of Mr Siejda’s treatment in Poland but does not provide any basis for an order under the Mental Health Act and Mr Khan did not suggest that it did. The judge found that the appellant’s admissions and the advice tendered in consequence of that advice had been perfectly clear, appropriate and unequivocal. In the result two days had been spent considering an unmeritorious application and the credit for a guilty plea should be limited to 20%. That was, in the judge’s view, a generous discount and included in it was an allowance for the appellant’s young age and language difficulties. The judge intended to reflect his view that the appellant was not personally wholly responsible for the application to vacate his plea. The implication was that he may have been tempted by others away from the straightforward approach he had originally espoused.[50]It seems to us as it did to the single judge that a starting point of 15 years would have been appropriate for an offender of mature years in this appellant’s position. It reflected the personal importation of 3.5 kilos of pure cocaine, delivering money and acting as a minder for others. The question for this Court is whether adequate allowance was made for the comparatively young age of the appellant and his personal circumstances at the time of his recruitment, his dependent personality and his plea of guilty. The appellant was aged 19 when he committed these offences. In our judgment this was an important factor which required separate consideration when setting the starting point, independent of any consideration of the discount for his pleas. In our view the appropriate starting point for this appellant was 12 years imprisonment. Given the judge’s view that he was not wholly responsible for his tactical change of direction we think that a discount in the region of 20% would have been appropriate. The resulting sentence will be 10 years detention in a young offenders’ institution which we will substitute for the original sentence of 12 years on count 1. The sentences will continue to run concurrently and the period spent on remand of 577 days will count towards that sentence. Krzysztof Kownacki[51]Krzysztof Kownacki and Wioletta Sadowska were arrested as they entered the UK at Dover in Fiat Multipla ST51 CHH on 6 August 2007. They were prosecuted by HM Revenue and Customs and at Canterbury Crown Court pleaded guilty to 5 offences relating to the importation made during their journey of MDMA, cannabis, firearms and ammunition. However, the prosecution accepted their bases of plea that they were unaware of the presence of the firearms and ammunition. As the recorder then observed, they were extremely fortunate. On 16 January 2008 the appellant was sentenced to a total of 5½ years imprisonment and Sedowska received the same sentence.[52]Following her arrest Sedowska made admissions which resulted in further charges of possession of cocaine within intent to supply and possession of ecstasy with intent to supply. Following her pleas of guilty in April 2008 she made a statement to the Lancashire police in which she implicated 11 other accused. She gave evidence in the trial of several of the Lancashire defendants at Liverpool. On 9 May 2009 she appeared at Preston Crown Court for sentence. The judge indicated that had it not been for her assistance he would have imposed a sentence of 6 years imprisonment. In the result the judge imposed a sentence of 2 years imprisonment for the additional matters concurrent with the sentence of 5½ years imposed at Canterbury. On 29 October 2009 the Canterbury Crown Court heard Sedowska’s application for a re-consideration of her earlier sentence under section 74 (2) (c) Serious Organised Crime and Police Act 2005. Her sentence was reduced to 3 years concurrent which meant that Sedowska served a sentence totalling 3 years imprisonment in respect of the activity reflected in counts 1 and 2 of the indictment.[53]On 23 April 2009 Kownacki pleaded guilty at Liverpool Crown Court to count 5 in the indictment which charged him with, on 25 January 2007, unlawfully supplying cocaine to another, and to count 6, on 26 March 2007, unlawfully supplying MDMA to another. These counts reflected Kownacki’s involvement in the importation by means of the Citroen C5 BAU 29FT of cocaine to Croydon for onward distribution by Taylor to Lancashire and later of MDMA for Delroy Powell in Leeds. He was sentenced to 8 years imprisonment concurrent in each count but the judge ordered that that sentence be served consecutive to the sentence of 5½ years imposed at Canterbury.[54]Kownacki was a close friend of Tomasz Wisniewski. The judge concluded that he was a more prominent figure in the importations than was Wioletta Sadowska. It was Kownacki who told Sadowska during her first importation the nature of the drugs they were carrying. It was Kownacki who received expenses for the trip from the Dutch players and paid Sedowska from cash he received. The judge, rightly in our view, concluded that although Kownacki had pleaded guilty to 4 substantive counts it would be unrealistic to view his involvement as anything other than continuing. He did not accept the argument that the view expressed by the judge who imposed a 2 year sentence on Sedowska was in any sense binding upon him when he came to assess Kownacki’s culpability.[55]It is now argued by Mr Harding that 6 rather than 8 years imprisonment was the appropriate sentence for Kownacki and the sentences should have been ordered to run concurrently. We do not agree that Sadowska’s involvement is directly comparable with that of Kownacki for the reasons given by the judge. Furthermore there were exceptional reasons for the concurrent sentences eventually imposed in Sedowska’s case who took huge risks to give valuable evidence on behalf of the prosecution. The court has asked itself the question whether, had the applicant been sentenced at one hearing for an involvement in each of the importations which he admitted, a sentence of 13½ years after pleas of guilty would have been regarded as excessive.[56]The applicant appears to have been due full credit for his pleas of guilty since he tendered them at the first realistic opportunity on both indictments. His sentence of 13½ years therefore represents a starting point in the order of 21 years. The starting point for Wisniewski on count 1 we have estimated at 24 years. In our view this fails to make a sufficient distinction between an organiser (Wisniewski) and a courier/manager (Kownacki). We consider that a proper distinction will be reached by adopting a starting point of 18 years in Kownacki’s case producing a total sentence of 12 years. We shall achieve that result by reducing sentence on counts 5 and 6 in the Liverpool indictment to 6½ years concurrent with each other but consecutive to 5½ years imposed at Canterbury. Days spent on remand will continue to count. Nyome Dawn Hue[57]Nyome Hue is now aged 36. On 26 October 2009 she was found guilty by the jury of count 1 in the Liverpool indictment. On 17 December 2009 she was sentenced to 13 years imprisonment. The appellant is the sister of Ivan Hue and Stella Taylor who were without doubt at the centre of the business of importation into the North West of England.[58]The evidence adduced in Ms Hue’s trial concerned, among other things, her alleged involvement in the purchase of the Fiat Multipla X129 BUJ. In the event the prosecution relied only upon telephone contact between Stella Taylor and the appellant coincident with the day of purchase. They did not attempt to prove that she was physically present at the sale. Ms Hue accompanied the others on a journey to Holland with the car in January 2007. They returned in W708 SSL bringing drugs with them to Lancashire. Ms Hue also took flights to Amsterdam on 30 December 2006 and 7 March 2007 for the delivery of cash or documents. She was present at the Toucan Hotel meeting. During the journey in the Fiat and the meeting in the hotel Ms Hue was accompanied by Stella Taylor. It is a natural inference that Taylor was Ivan Hue’s principal representative. Ivan Hue was sentenced to 24 years imprisonment and Stella Taylor to 21 years. The judge heard the evidence in their trial.[59]The judge took the view that Nyome Hue acted as a liaison between her brother and sister. Stella Taylor had been in telephone contact with Nyome Hue on her return with the consignment of drugs on 4 December 2006 and again on 15 December 2006. Based upon the factors to which we have referred the judge found that Miss Hue played an important role in the Hue family drug business.[60]Miss Hue was of good character and worked as a staff nurse in a local hospital. She lived with her partner and two children. Character references indicated that the offence was out of character and probably driven by misplaced family loyalty. We are reluctant to interfere with the judge’s findings of fact, particularly as he heard the evidence at the trial of all the relevant personalities. However, we have compared the involvement of the appellant with that of several others charged in the same indictment. We do not consider that this appellant can be regarded as being in the same league as her siblings in terms either of authority or participation. Her involvement was intermittent and at a significantly lower level. In our view Ms Hue’s culpability would properly be reflected by a sentence of 11 years imprisonment which we shall substitute for the sentence of 13 years imposed upon count 1. Natalie Nicholls[61]Natalie Nicholls is now aged 32 years. She too was found guilty by the jury of involvement in the count 1 and count 2 conspiracies. She had previous convictions for theft, deception and assault. She was sentenced to 15 years imprisonment. Ms Nicholls was recruited to the conspiracy by Stella Taylor who was her close friend. Her role was similar to that of Nyome Hue but she was more deeply involved. She accompanied Stella Taylor on trips to Scotland and Amsterdam in pursuit of the drugs business. She was involved in an importation of cocaine and cannabis by car on 15 December 2006 and she made journeys with cash to Amsterdam on 9 November and 30 December 2006 and again on 19 February 2007.[62]Telephone traffic demonstrated the closeness of her association with Stella Taylor, her contacts in Scotland and communication with Dion Lee. She travelled with Ms Taylor to Amsterdam in March 2007 in an attempt to recover the impounded Fiat. She travelled again in July with Ms Taylor when the vehicle was eventually released. During the period January to July 2007 almost £4,000 in cash was credited to Ms Nicholl’s account. She made no replies in interview and did not give evidence at her trial.[63]Mr Stewart submits that 15 years imprisonment was an excessive sentence to someone who was not an organiser but a follower. She had an 11 year old son and had not before served a sentence of imprisonment. Several references referred to Miss Nicholls as a caring woman. At the time of preparation of the pre-sentence report Ms Nicholls continued to deny her guilt. The judge observed that he heard no sign of remorse.[64]The applicant was well aware that she was lending herself to a conspiracy which involved the importation of vast quantities of cocaine achieved by the use of vehicles and human mules. She did so by standing at the side of Stella Taylor who was a leading player in the conspiracy. The single judge refusing leave observed that a sentence of 15 years after a trial was within the appropriate range. We agree. The renewed application must be dismissed. Karen Louise Forshaw[65]Karen Forshaw who is now aged 36 was found guilty by the jury in the count 1 and count 2 conspiracies. She was sentenced to 10 years imprisonment upon count 1 and 6 years concurrent on count 2. Ms Forshaw was also recruited by Stella Taylor. She was directly implicated with Natalie Nicholls and others in the importation of cocaine and cannabis by car on 15 December 2006. She too made a cash run on 19 February 2007. During the journey she was in telephone contact with Dion Lee. Ms Forshaw had refused other assistance to Stella Taylor. She was not as heavily involved as Miss Nicholls and somewhat less implicated than Nyome Hue.[66]It was submitted that Ms Forshaw was at the bottom of the Lancashire tier and was being used by others. She had convictions for theft, fraud and violence but not for drugs offences. It is submitted that the judge’s starting point was excessive. We have been provided with copies of letters written to the sentencing judge which in our view do nothing to demonstrate that the applicant deserved the sympathy of the court. The issue is whether a sufficient distinction has been made between the involvement of this applicant, Ms Nicholls and Ms Hue. We think not. In our view the sentence on count 1 should be reduced to 9 years. We shall grant leave. Unless within 7 days Ms Forshaw makes written application to the contrary the sentence on count 1 will be quashed and 9 years will be substituted for it. The sentence on count 2 will continue to run concurrently and days spent on remand will continue to count.[67]We now turn to the remaining members of the Lancashire network. Mohammed Anwar Bawla and Majeed Shah. Mohammed Anwar Bawla[68]Mohammed Anwar Bawla now aged 36 pleaded guilty on re-arraignment on 30 July 2009 to counts 1 and 2 in the indictment. He was sentenced on 17 December 2009 to 15 years imprisonment. The judge found that Bawla and Shah were key figures in Lancashire. They worked closely with Ivan Hue and were visited by both Wisniewski and Bloch. The judge found that there were no fewer than four importations of cocaine and cannabis which found their way to Lancashire and some of the mule importations had the same destination. On arrival both men were involved in large scale distribution.[69]In October 2006 they were involved in the purchase of the Fiat Multipla W966 JSC which travelled to Holland. In November it was used for an importation to which Bawla and Shah were linked by telephone traffic. The importance of this evidence is the link it establishes between the applicants and the importation before distribution. In November 2006 Wisniewski visited Lancaster before travelling to Scotland to collect Fiat ST51 CHH which he then drove to Amsterdam. On 13 February 2007 the applicants were implicated by telephone traffic in the collection of Y708 SSL by Roman Bloch for onward delivery to Holland. On 4 December 2006, when Stella Taylor and others imported cocaine, they were implicated by telephone traffic. Similarly, on 25 January 2007 the applicants were in contact with the importation by Kownacki and Sadowska. Bawla and Shah were involved in the arrangements for mule importations on 11 October 2006 and 23 November 2006, and for cash runs in February 2007.[70]In writing Mr Ashmole concedes the magnitude of the conspiracy and Mr Bawla’s intimate involvement in it. He suggests that Mr Bawla should not be treated as an organiser “at the top end”. His interest was only in the Lancashire end of the conspiracy. Mr Ashmole relies on the decision of the court in Green [2009] EWCA Crim 1688 in which a starting point of 20 years was approved for an appellant who acted as lieutenant to a drug conspiracy. That was not, Mr Ashmole submits, the role of Mohammed Bawla. While he agrees that the scale of this conspiracy was huge, the involvement of Bawla, he contends, was not.[71]We cannot accept these submissions. Most of the vehicles were sourced in the United Kingdom, one of them in the North West. It was a feature of this conspiracy that the demand end in Lancashire and Scotland was intimately concerned with the supply and not just in the receipt and local distribution of the drugs. They were thus intimately connected with the importation. While there is no doubt that Ivan Hue was the dominating organiser in Lancashire as a whole, Bawla and Shah were at the top of their organisation in Lancaster. Mr Ashmole does not criticise the judge’s discount of 20% for Mr Bawla’s guilty plea. In our judgment a starting point of 19 years cannot properly be challenged. The renewed application for leave is dismissed. Majeed Shah[72]Majeed Shah is now aged 35 years. He was a close business associate of Mr Bawla and his partner in this criminal enterprise. On 23 April 2009, at the first opportunity, he pleaded guilty to counts 1 and 2. On 17 December he was sentenced upon count 1 to 15 years imprisonment and upon count 2 to 8 years imprisonment concurrent. He was already serving a sentence of 10 years imprisonment imposed on 18 February 2009 for conspiracy to supply a controlled drug class A. We have described Mr Shah’s complicity in the present matters when considering the application of Mr Bawla.[73]Mr Gray submits, first, that the starting point for count 1 was too high in Shah’s case. For the reasons that we have given we disagree. Secondly, Mr Shah pleaded guilty at the first opportunity. If both men had the same starting point Mr Shah should have received the greater credit. What distinguishes Mr Shah’s case in our view is the fact that he had convictions not just for violence and dishonesty but also on 15 January 2001 for being concerned in the supply of class B amphetamine and on 22 November 2002 for conspiracy to supply class A controlled drugs for which he was sentenced to 2 years and 8 years imprisonment respectively. The first offence was committed with Dion Lee. The appellant had a highly relevant antecedent history which in our view justified the judge treating these men in the same way.[74]While Mr Shah was on licence from his sentence of 8 years, he engaged on 15 October 2006 in a conspiracy to receive 4 kilos of heroin. In 2008 he was convicted and sentenced to 10 years imprisonment. HHJ Mark Brown ordered the sentence of 15 years he imposed on the present indictment to be served consecutively to this sentence. Mr Gray argues that the principle of totality was not therefore applied. Majeed Shah is a resourceful and determined dealer in drugs in very substantial quantities. He is not deterred by substantial sentences. The offence for which he received 10 years imprisonment has no connection with the present indictment. In our view a consecutive sentence was fully justified. However, standing back from the events of 2006 to 2008, it seems to us that a total sentence of 25 years imprisonment was excessive. In our view a sufficient penalty would have been 23 years imprisonment. We shall achieve that result by substituting for the sentence of 15 years upon count 1, a sentence of 13 years. The sentence upon count 2 will continue to run concurrently but the substituted sentence of 13 years will be served consecutively to the term of 10 years imposed in 2008. Days spent in custody on remand will continue to count.[75]We turn to the case of James Boyle a member of the Scottish limb of the conspiracy. James Boyle[76]The appellant James Boyle pleaded guilty on 13 February 2009 to counts 1 and 2. On 11 June 2010 the appellant was sentenced to 7 years imprisonment in respect of count 1 and 4 years imprisonment in respect of count 2 concurrent. The judge noted the scope of the conspiracy and described the appellant’s involvement. On 16 December 2006 Boyle purchased one of the vehicles Y708 SSL and registered it in his own name. He drove it to Holland where it was prepared for the transport of drugs. The money for the purchase was provided by Martin Graham. The appellant was supposed to return with a consignment of drugs but did not in the event do so. Instead the appellant returned to Edinburgh with McIntosh and Martin Graham. The vehicle was used subsequently for an importation by Stella Taylor and others on 11 January 2007. In May 2008 the appellant was involved in the supervision of human mules in their arrival in the UK. He collected a female courier from Newcastle and drove her to Scotland where she handed the drugs to Martin Graham. The appellant repeated the exercise shortly afterwards.[77]The judge concluded that the appellant was not a major player but he was trusted and involved at different times throughout the conspiracy. The judge sentenced the appellant on the basis that he was a foot soldier. He gave him full credit for his pleas of guilty and informed the appellant that he was entitled to credit of 50%. The judge took a starting point of 14 years which resulted in the principal sentence of 7 years imprisonment. Mr Stevenson submits that Mr Boyle’s starting point must have been the same as that of Martin Graham who recruited him. Graham was Boyle’s senior in the conspiracy. In our view this submission has merit. A distinction should be made to reflect the levels respectively at which the appellant and Graham functioned. In our view the appellant’s position would have been properly represented by a starting point of 11 years. His appeal is therefore allowed. The sentence on count 1 will be quashed and 5½ years substituted. It will be concurrent with the sentence of 4 years imprisonment on count 2 making 5½ years in all. 650 days will continue to count against that sentence.[78]Finally we turn to the sentence imposed on Delroy Powell, the Leeds recipient of vehicle importations. Delroy Powell[79]Delroy Powell is aged 31. On 23 April 2009 he pleaded guilty to count 1 of the indictment. On 22 May 2009 he was convicted by the jury of counts 3 and 4. On 17 December 2009 Mr Powell was sentenced to 13 years imprisonment in respect of count 1, 10 years imprisonment consecutive in respect of count 3, and 4 years imprisonment concurrent in respect of count 4. The total was therefore was 23 years imprisonment.[80]The judge observed that Delroy Powell was the main customer for the importation which took place on 26 March 2007 when 7,500 ecstasy tablets were imported. In August 2007 5,000 ecstasy tablets were imported for Leeds together with 7 kilos of cannabis and a variety of firearms. Mr Powell was not a mere purchaser. He travelled to Amsterdam and met with the principals. The judge described how Mr Powell managed his distribution through his outlets in the North East. He had decided to extend his activities from drugs to firearms. Mr Powell’s deep involvement was demonstrated by his presence in Amsterdam shortly before the August importation. It was submitted on Mr Powell’s behalf that a sentence of 23 years imprisonment was manifestly excessive. The MDMA tablets were not of particularly high quality. The guns and ammunition were recovered. The appellant is a father with 4 children. In prison he was a listener and a prisoner with enhanced status.[81]The applicant has been convicted in the past of robbery, supplying class A cocaine and possession of heroin with intent to supply. His convictions constituted a significant aggravating factor. We reject the submission that the applicant should not have been sentenced as a determined and major distributor of drugs in the North East of England whose activities had escalated to the purchase and supply of illicit and prohibited firearms. While we recognise that Mr Powell was not an organiser of the principal conspiracy he was head of a distribution network in a major conurbation in the North East. He was close to the importers and visited them in Holland. It was necessary that the sentence in respect of importation of firearms should be imposed consecutively in order to reflect the grave nature of such offending. A sentence of 23 years is at the top of the permissible range in our view but not arguably excessive. For this reason the application will be dismissed.[82]We shall not leave this appeal without expressing our thanks to the sentencing judge, HH Judge Mark Brown, and the single judge, Mr Justice Tugendhat for the clarity of their reasons, and to counsel who appeared in the appeal for the focus of their submissions. We have been much assisted.