Shaw & Ors v R. [2011] EWCA Crim 98

[2011] EWCA Crim 98Case No 2010/1562/A92010/3807/A9; 2010;1736/A9; 2010/1766/A9IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
Venue ON APPEAL FROM THE CROWN COURT AT MANCHESTER
His Honour Judge Hammond
T20077443
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 04/02/2011
Before
LORD JUSTICE LEVESONLORD JUSTICE PITCHFORDHIS HONOUR JUDGE McKINNON Q.C.Recorder of Croydonsitting as an additional Judge of the Court of Appeal (Criminal Division)
Between
JAMES SHAWAppellantsRIKKI SRAOAppellantJASBINDER SAMPLAYAppellantMAHMOOD KHANAppellantCHARLES WALTER WRIGHTAppellantTHE CROWNRespondent
Mr Roderick Carus Q.C. for Applicant, James ShawMr Benjamin Nolan Q.C. for Applicant, Rikki SraoMr Balbir Singh for Appellant, Jasbinder SamplayMr Christopher Daw for Appellant, Mahmood KhanMr Simon Csoka for Appellant, Charles WrightMr Shane Collery for CrownHearing Hearing date : 21 January 2011
Judgment
[1]On 2 March 2010, in the Crown Court at Manchester, James Shaw, Rikki Srao, Jasbinder Samplay, Mahmood Khan and Charles Walter Wright fell to be sentenced along with Wesley Redshaw and Keith Pritchard for one or more offences mainly in connection with the importation or supply of cocaine. All had pleaded guilty at different times and, in some cases, upon a basis which had to be fitted in to the overall picture.[2]The sentences imposed by His Honour Judge Hammond were as follows. Shaw (who, on 29 February 2008, one month prior to the trial date, had pleaded guilty to count 1 conspiracy to import cocaine and count 4 conspiracy to supply cocaine and, on the trial date, 31 March 2008, to count 2 conspiracy to import cocaine) was sentenced respectively to 16 years 9 months, 7 years and 7 years imprisonment all to run concurrently and made subject to a travel restriction order for two years. Srao, who also on 29 February 2008 had pleaded guilty to count 1 and on 31 March to count 2 and count 3, conspiracy to import cocaine, was sentenced to 15 years, 5 years and 5 years imprisonment concurrent with a travel restriction order for 5 years. Samplay had also pleaded guilty to count 1 on 29 February 2008 was sentenced to 14 years imprisonment with a travel restriction order for 5 years. Khan (who had offered to plead guilty to count 4 alone on 13 January 2009, the plea only being accepted later) was sentenced to six years imprisonment with a two year travel restriction order. Finally, Wright who had pleaded guilty on 18 December 2009 to count 6, being concerned in the supply of cocaine, which was an alternative to count 4, was sentenced to five years imprisonment with a travel restriction order for two years. In each case, time spent on remand, which in two cases exceeded 900 days, was ordered to count towards the sentence.[3]Samplay appeals against sentence by leave of Coulson J. Khan and Wright appeal against sentence by leave of McKay J who refused leave to Shaw and Srao; they seek to renew their applications and counsel appear pro bono. We add that Redshaw and Pritchard were also charged in relation to count 4 to which they also pleaded guilty. Pritchard further admitted possession of a controlled drug namely cocaine with intent to supply. They were subsequently sentenced to 7 years and 6 years imprisonment respectively. No appeals have been mounted against these sentences.

The Facts

[4]Count 1 (which concerned Shaw, Srao and Samplay) was a conspiracy to import cocaine on a significant scale to be concealed in bulk cargo: it was described by the judge as “the major count”. It ran from July 2006 to July 2007 and was, in what was established by the evidence, a “dry” conspiracy, meaning no drugs were actually ever imported. Shaw was the driving force and lynch pin. He was responsible for arranging the transfer of the drugs on arrival in Europe. Srao was responsible for sourcing the cocaine in the Caribbean, arranging its concealment and transport to Europe. Samplay met Shaw in prison. He introduced Shaw to Srao and acted as the conduit between them.[5]In furtherance of the conspiracy, Srao spent in the region of £100,000. He created a front company and rented an industrial unit in Hyde. He made several trips to Trinidad and Tobago. On one visit he purchased two 40 foot sea containers. The plan was to load them with 80 barrels of liquid asphalt purchased from a company in Trinidad, supposedly for use in India. The consignment of cocaine would be placed in the barrels and the liquid asphalt would solidify on top of the cocaine. On arrival at their destination the barrels could be heated to liquefy the asphalt and enable the cocaine to be retrieved. Although the judge described it as “a very convenient and likely to be a successful way of importing substantial quantities of drugs into the United Kingdom, the asphalt company would not supply the asphalt without a legitimate purpose.[6]Shaw rented a business unit in Stockport for drug storage and breaking bulk. He invented a fictitious company as a front for his apparent involvement with asphalt, the landline for which was a telephone kiosk. Samplay, on the other hand, acted as the conduit between Shaw and Srao. There were a number of meetings and telephone contacts between the parties during the period of the conspiracy. On 8 October 2006 Shaw and Samplay discussed the figure of 100 kilos. Text messages indicated that Samplay was trying to obtain financial support for the conspiracy.[7]On 1 December 2006 a covert listening device was inserted into Shaw’s car. Discussions concerning concealment, telephone security and other matters consistent with importation were recorded. Shaw was heard organising transport. He put pressure on Srao to fulfil his role. In January 2007, Shaw and Srao discussed figures of 200 and 260 kilos. On 15 January 2007 Shaw told Srao the transport man had pulled out. They met later to discuss alternative mechanisms for importation (including in mushrooms in brine); the lesser figure of 75 kilos was mentioned: Shaw is recorded as saying:
“If there’s 75, get the fuckers … over. Let’s get some fucking wages.”
He also referred to drugs of 100 per cent purity. In April 2007 Shaw met Samplay. Their discussion indicated that they had given up on Srao. They discussed other contacts and other methods of importation.[8]The involvement of Srao effectively ended on 26 April 2007 when he was sentenced to nine months’ imprisonment for assault. Sampray’s involvement was identified in a basis of plea which was accepted by the Crown and was put in these terms:
“(a) He did not plan, or in any way instigate this Conspiracy. (b) His essential role was to introduce two Conspirators, to one another and for a time act as a channel of communication. (c) Thereafter, they communicated directly. (d) He was not to finance the Conspiracy in any way. (e) He was not to be involved in any importation either in the UK or abroad. (f) He was not to be involved in the distribution of any drugs. (g) He was not aware of the quantities involved, when he joined the Conspiracy. (h) He only conspired with Shaw or Srao. (i) Clearly, [the appellant] received no benefit from this Conspiracy.”
[9]Count 2 concerned Shaw and Shrao and was a further conspiracy to import cocaine, this time, by courier. On 8 December 2006 Shaw and Srao discussed importing one kilo of cocaine worth £28,000. The courier, Trevor John, was booked on a flight from Trinidad and Tobago and a hotel room booked in his name. A forged fax confirmation of the booking was later recovered from Srao’s computer. On 12 December 2006 Srao went to the terminal at Heathrow but despite a number of telephone calls to Trinidad and Tobago and an announcement asking Mr John to attend the information desk, Trevor John did not materialise. A week later Srao was again in the Heathrow area, contacting the same Trinidad and Tobago telephone number to try and set up another courier importation.[10]Count 3 was a yet further conspiracy to import cocaine: the means on this occasion was by post. On 12 January 2007 Srao told Shaw his contacts in Trinidad and Tobago tried to send drugs through DHL and Fedex but everything had been seized in Spain. However, he now had a “top dog” contact in DHL/TNT who could guarantee whatever he sent would get through.[11]On 29 March 2007 a man called Alfred sent a 76 gram package to an Imran Younis at a shop in Manchester. The shop had no dealings with Trinidad and Tobago. The owner did not know the addressee but his son, Navid, was Srao’s friend. A further parcel was delivered on 10 April 2007. There was significant telephone contact between Srao and the sender, Alfred, and between Srao and the recipient, Navid, in the lead up to that importation.[12]On 23 April 2007 Srao contacted Alfred. He then telephoned a TNT mobile number after which he sent Alfred text messages containing a TNT parcel reference, the name Ivan Dolly and his own UK address. Alfred sent a package weighing 1.26 kilograms to Ivan Dolly (no such person existed) at Srao’s address. However, the package was seized by US customs in Miami on 25 April 2007 and destroyed. It contained 113 grams of cocaine.[13]Count 4 concerned Shaw and Khan and related to a conspiracy to supply cocaine in May 2007. It was linked to Count 6 which was the accepted alternative plea by Wright to the offence of being concerned in the supply of cocaine. Shaw and Khan were middle men involved in the supply of a kilo of cocaine from a supplier contact of Khan’s to Redshaw who was introduced to them by Wright.[14]On 24 April 2007 Shaw discussed the position with Wright who suggested Redshaw as a low profile dealer with money whom they could involve. Khan was in contact with a man called “Rich” who was going to supply the cocaine. On 22 May 2007 Shaw told Khan he only wanted “Cadbury’s Easter eggs” meaning drugs sealed in their wrappers.[15]On 25 May 2007 Shaw and Redshaw drove south from Manchester. Shaw spoke to Redshaw about doing business and counter surveillance measures. Shaw negotiated a half ounce deal of cocaine for himself. Pritchard drove south from Manchester. He was to act as a courier for Redshaw. Khan liaised with “Rich” whose courier met Pritchard at a hand over point in Stoke and the kilo of cocaine was transferred. Pritchard drove to a location near Redshaw’s home where Shaw and Redshaw checked the drugs before depositing them at Redshaw’s home. Shaw then drove back to Stoke and gave Khan £14,000 which was Redshaw’s first payment on the £33,000 balance for the kilo of cocaine. Shaw then returned to Redshaw’s house to pick up the half ounce that he had negotiated for himself.[16]On 27 May 2007, Redshaw’s house was searched police officers. Most of the drugs had been moved on but the police recovered half an ounce of cocaine, various drug paraphernalia and half a kilo of cutting agent. Three days later, Shaw and Wright met to discuss the arrest: they were concerned about the money owed to Khan. They met Khan in Stoke. Wright said he would offer to stand surety for Redshaw on the basis that if he was out of prison it would make it easier for him to get the money needed to pay the drug supplier.[17]On 17 July 2007, the five appellants were arrested. In interview, Shaw, Samplay and Srao made no comment. Wright accepted that he knew Shaw but otherwise made no comment. Khan spoke about his legitimate business. He accepted that he knew Shaw and Wright but had no business dealings with them. He was a drug user but did not supply others.

The Appellants

[18]We now turn to deal with the antecedents and individual circumstances of the appellants.[19]James Shaw is now 68 years of age with convictions on some 15 occasions dating back over 40 years. Between the mid 1960s and the mid 1980s, his appearances were mainly for offences of burglary, dishonesty, some vehicle related offending and some violent offences for which he received differing sentences. Between 1984 and 1994, there was a gap but he then received a further custodial sentence for offences of dishonesty offences. Most significantly, his last previous appearance was in 1998 when, for the offence of being knowingly concerned in importing a controlled drug of Class A, he was sentenced to 15 years’ imprisonment.[20]The pre-sentence report explained that Shaw developed a cocaine habit while in custody. He admitted wanting to purchase large amounts of cocaine for himself and being privy to discussions with others about importing cocaine but denied being the leader in those discussions or that they were ever serious although he recognised that his lifestyle, drug misuse and associates within a criminal subculture led to his offending. Thinking skills deficits had been a factor in past offending. The risk of re-offending was medium to high. He lived with his partner and disabled son. He was upset at the impact of his behaviour on his family and there were concerns about his ability to cope with a lengthy custodial sentence. Letters from his wife, his GP concerning the health of his wife and disabled son and from the prison all spoke of another side to this appellant.[21]When passing sentence, not surprisingly, the judge underlined the 15 year sentence served for an identical offence. although he recognised that the sentence he was about to impose would mean that Shaw had effectively reached the end of his criminal career, he correctly observed that a substantial sentence was necessary to deter others. He identified his starting point for count 1, after a trial, as 24 years which he reduced by 25 per cent to reflect his extremely early guilty plea, albeit the case against him was overwhelming. He allowed a further reduction to reflect the time that he had spent having been recalled to prison in breach of licence when, but for the delay, he could have been serving this sentence. In that context, he passed the total sentence of 16 years 9 months and made a travel restriction order for 2 years.[22]Rikki Shrao is now 30 years of age and had two previous occasions. In 2000, he was sentenced to a total of six years’ imprisonment for conspiracy to kidnap and having a firearm with intent to commit an indictable offence. In 2007 he was sentenced to nine months’ imprisonment for harassment and assault occasioning actual bodily harm (which meant that his loss of liberty resulted in his disengagement from the conspiracies).[23]In the pre-sentence report, it was reported that Srao accepted only limited responsibility. He said that he came into contact with others in the drug trade through his legitimate import/export business. He described Shaw as the main instigator who caused matters to escalate. He was financially motivated (as was the previous conspiracy to kidnap) but he described the plans to import large quantities of cocaine as exaggerated “pipe dreams” by all involved. As for his personal circumstances, Srao described a difficult upbringing and said that he was forced into an arranged marriage from which he was seeking a divorce. His parents disapproved of his current partner. The probation officer expressed concern that a lengthy prison sentence had not deterred Srao from further offending: he had established criminal links and lacked insight.[24]The judge concluded that Srao was a serious player with a serious previous conviction albeit unrelated to drugs. He played an active role in the main conspiracy and was also involved in postal and courier importations. Taking into account the authorities, for the main conspiracy, his sentence would have been 21 years after a trial. There was strong evidence against him but his plea would attract a discount of more than 25 per cent but less than the 33 per cent for a guilty plea at the earliest opportunity: that led to a sentence of 15 years. There was no reason not to make a travel restriction order.[25]Turning to Jasbinder Samplay, who is now 43 years of age, he had appeared before the Courts on six previous occasions, the only relevant conviction being in 2003 when he was sentenced to six years’ imprisonment for three offences of possessing cocaine with intent to supply: it was during that sentence that he met Shaw and at the start of the conspiracy had only recently been released on licence.[26]To the probation officer, Samplay described himself as on the periphery to the conspiracy, introducing Shaw and Srao with “an idea that their business may not be legal”: no question of payment was discussed. He expressed guilt at letting his family down and was described as a passive man who appeared to have been overwhelmed by his need to do something for his friends despite the negative consequences for his family. There were references that spoke of his exemplary conduct in prison and a letter from his 11 year old daughter only served to underline the impact of his criminality upon his family.[27]The judge pointed to Samplay’s previous convictions for drug offences and described his role as putting Shaw, who had a marketing network, in contact with Srao, who wanted to import massive quantities of cocaine. Further, he continued the conspiracy for a long time looking for other ways of importing substantial amounts. The judge concluded that the appropriate sentence after trial bearing in mind his role was 20 years which would be reduced by 30% to reflect his guilty plea, resulting in 14 years imprisonment. There would be a travel restriction order for five years from the date of his release.[28]Mahmood Khan was now aged 37. His two previous appearances before the court had both led to fines and the pre-sentence report noted that he had been drawn into illegal drug use which had escalated rapidly causing financial problems. The probation officer considered that he appeared to have been extremely naïve and trusting in his dealings with Shaw and lacked awareness of the consequences of his offending. As to his personal circumstances, he was self-employed with had three young children; he had not taken any drugs since his arrest in 2007. It was considered that he posed a low risk of harm to the public and, entirely unrealistically, the recommendation was for a high end community order.[29]The judge noted that Khan’s involvement related to participation in a conspiracy to supply 1 kilogram of cocaine and considered that his guilty plea in the face of strong evidence against him should attract a discount of 25%. Reducing the headline sentence to reflect his personal mitigation, the sentence would be eight years discounted to six years. He also ordered a travel restriction for two years.[30]Khan’s involvement was described as slightly more serious than that of Charles Wright (who admitted a substantive offence of being concerned in the supply of what was 1 kilogram of cocaine). He was 50 years of age and also had only twice appeared before the courts having been given a community order for driving offences which he later breached. To the probation officer who prepared the pre-sentence report, he said that he had pleaded guilty out of expediency but denied active involvement in the offence. He knew Shaw and other insalubrious characters through his family business interest in clubs and other areas. Not surprisingly, in the light of his denial it was difficult to assess his motivation but he denied any involvement in drug misuse although he had been receiving treatment for stress. He was concerned at the impact of a custodial sentence on his family and the future success of his diverse and extensive business interests. He was considered a low risk of re-offending and, again unrealistically, the report proposed a suspended sentence as an alternative to immediate custody.[31]The judge accepted that Wright pleaded guilty at the earliest available opportunity to his involvement in the supply of a kilo of cocaine. The guideline case indicated that the sentence ought to be ten years or more but given his considerable personal mitigation the starting point after a trial would have been eight years which the judge discounted to five years, also ordering a travel restriction for two years.

Generic Grounds of Appeal

[32]A number of the arguments advanced on appeal are common to more than one offender; others are specific to the individual. We first deal with the general arguments and will then apply the conclusions that we reach as we consider the specific cases of each applicant and appellant.[33]We deal first with the argument relating to count 1 (which concerned the conspiracy to import very substantial quantities of cocaine) to the effect that the judge undertook the sentencing exercise from too high a starting point. The first point made is that although the offence of conspiracy is always inchoate, in the sense that the agreement alone is sufficient for proof of guilt, unlike many other cases, this prosecution did not involve massive importations that had, in fact, taken place Furthermore, although the conspirators had spoken of substantial quantities and may even have taken steps to plan for the importation of cocaine in substantial quantity, the quantities referred to were “pie in the sky” or “wishful thinking” and did not represent the realistic ambitions of the conspiracy. Thus, the quoted figures should not be taken as the quantities truly involved.[34]As to the second point, Judge Hammond simply did not accept the proposition that the quantities referred to were no more than an exaggerated puff and it must be borne in mind that, at the time, Judge Hammond was one of the most experienced judges in the country trying this type of offence: he had been doing so for over 20 years. The judge referred to the need for arrangements to be set up, the assurance of a supply of drugs along with the network and customers in the UK. He spoke of the contemplation of “massive importation” and “serious steps undertaken in order to fulfil it”: in that regard, it is relevant to underline that over £100,000 had been expended in set up costs. He was entitled to reach that conclusion and the sentences fall to be considered against those intentions.[35]The starting point when considering the importation of drugs remains the guidelines set out in R v.Aramah (1982) 4 Cr App R (S) 407 as amended (see R v. Bilinski (1987)9 Cr App R (S) 360, R v. Satvir Singh (1988) 10 Cr App Rep (S) 402, R v.Aranguren (1994) 99 Cr App R 347 and more, recently R v. Morris [2001] Crim App R 25). These authorities make it clear that importation of cocaine in the order of 5 kilograms should be visited by sentences of 14 years and upwards: it is thus no surprise that in R v Latif [1995] 1 Cr App R 270, 20 years imprisonment was upheld for a principal organiser of an importation of 20 kg of heroin. Where, as here, the conversations (accepted by the judge as real estimates of the aspirations of the conspiracy) were about 100-260 kgs (although latterly 75 kg was mentioned), the stakes could not have been higher.[36]As for the fact that no drugs were in fact imported, counsel placed reliance on R v, Hardy & O’Sullivan [2004] EWCA Crim 2906. That case concerned a conspiracy to import up to 100 kgs of cocaine from Brazil but turned almost entirely on the evidence of an undercover police officer and does not appear to have progressed beyond the stage of conversation. It came to an end when the son of the principal offender (O’Sullivan) was killed in a motor accident: he then told the officer that he was not going to follow up the matter. Thus, not only did the conspiracy not come to fruition (and, because of the undercover officer, could not have done); it was voluntarily abandoned. Notwithstanding a prior conviction for supplying LSD (for which he received a 5 year sentence), 20 years imprisonment was reduced to 10 years. That case itself refers to Attorney General’s Reference Nos 90 and 91 of 1998 [2000] 1 Cr App R (S) 32 which concerned a conspiracy to supply drugs of class A and class B over a period of time in large quantities. Although some drugs had been delivered, the conspiracy did not come to fruition but there were references to 100 kgs and sums of money amounting to £250,000 and £300,000). Lord Bingham CJ observed that the conspiracy should attract 14 years after a trial: the difficulty with the case, however, is that although the conspiracy concerned both class B drugs such as cannabis and class A drugs (ecstasy and cocaine), the quantities of each (and in particular, the apportionment between class A and class B drugs) are not set out or defined in the judgment and it is trite to say that cannabis would attract a very different sentence to cocaine.[37]Neither of these cases is identical to the present where the conspiracy was solely concerned with cocaine and was advanced (albeit that the problems connected with acquisition of bitumen had to be overcome or importation resolved in some other way). Further, the idea of importing quantities of cocaine into this country had most certainly not been abandoned: the other conspiracies came into play. Having said that, it must, of course, be recognised that no cocaine actually entered this country pursuant to this conspiracy with the result that although the culpability of the offenders is exceptionally high, the starting point may not need to be as high as in those cases where substantial deliveries had, in fact, arrived in the UK. We repeat, however, that this very experienced judge had the feel of this case and a far deeper understanding of the facts than it is possible for this court to develop from the rather more limited material which has been put before us. He clearly took the view that the cocaine was in existence, and either was or could readily be acquired; he was also affected by the obvious sophistication of the planned operation. We are not prepared to disagree with his broad assessment of the gravity of the offences or, in particular, the significance of count 1.[38]Affecting the same three offenders, we must also deal with the argument based upon the consequences of the delay between arrest and final sentence: two years prior to sentence, each had pleaded guilty to the main conspiracy, count 1. It is thus argued that the rights enshrined in Article 6(1) of the ECHR to a fair and public hearing within a reasonable time were infringed. In his sentencing remarks, the Judge explained that it had been necessary twice to abort the trial of remaining defendants with substantial delays as those accused sought the services of preferred counsel. In relation to the argument that an the sentence should be adjusted to reflect the failure to comply with the Article 6 rights of those waiting to be sentenced, the judge said:
“It is the need for that provision [the right to be represented by independent and competent counsel of choice, paid for, if necessary, by the state] that has led to the inevitable delays here. It is also a factor that any time spent on remand awaiting trial counts towards the sentence actually served under our legislation. The only additional hardship therefore … has been the anxiety of awaiting sentence over a period and not knowing how long it was to be, but knowing that a lengthy custodial sentence was inevitable. It is not appropriate, in my view, … to reduce the sentence to reflect that fact.”
[39]In this court, it is submitted that the learned judge should have accepted this submission and reduced the sentence accordingly. Although no reference was made to authority, it is clear from this court’s decision in Attorney General’s Reference No 2 of 2001 ([2002] 1 Cr App R 272), that it was the practice of the court to take account of failure to proceed with a case with due expedition when determining sentence and in Mills v. Lord Advocate [2002] UKPC D2, [2004] 1 AC 441, a delay of 12 months in bringing an appeal (albeit that the appellant was on bail) led to a reduction of 9 months to the sentence “to compensate him for the effects of the delay” was said to be “an appropriate and sufficient remedy”. Finally, in R v. Ashton [2002] EWCA Crim 2782, a delay of four years between sentence and the determination of the appeal led t a reduction of 12 months from a sentence of 18 years: the appellant had changed solicitors twice but the real problem came about through delay in granting legal aid. Mantell LJ observed (at para. 83):
“We regard this case as being quite exceptional and … it should not be thought that any delay in listing which may be due to circumstances or conditions outside the control of the court or the prosecution will necessarily lead to a similar result.”
[40]None of the applicants or appellants asked the court to pass sentence earlier than the date upon which Judge Hammond embarked upon the exercise. In argument, this failure was explained on the basis that it was simply inconceivable that the judge would have sentenced any of those who had pleaded guilty until the trials had been concluded and this notwithstanding that the trials were adjourned on more than one occasion. We recognise the force in that argument but it can be taken too far. In this case, the three principal offenders had all pleaded guilty: those awaiting trial were lesser players and it may be that, in order to protect the Article 6 rights of offenders waiting to be sentenced, once it became apparent that a lapse of time of this order was likely to occur, the court should have proceeded to sentence irrespective of the preferable approach that points to the sentencing exercise being undertaken once in order that all the facts can be considered at the same time.[41]In our judgment, the approach of Judge Hammond paid too little attention to the inevitable anxiety that accompanies the uncertainty of awaiting sentence (which echoes the anxiety reflected in Mills and Ashton of those waiting for the disposal of their appeals). Although each case falls to be considered on its own merits, we conclude that a delay of two years for the trials of those to take place of those not alleged to be principal offenders gives rise to a valid argument in favour of the proposition that a reasonable time had elapsed and that the judge should have reduced the sentence (albeit slightly) to reflect the excessive delay. We shall reduce the sentence by 6 months to allow for that fact. In the context of this case, such a reduction on its own may be described as an inappropriate exercise of the power of this court: it reflects, however, the importance of adhering to convention rights and, in our judgment, not to make some small allowance is wrong in principle.[42]A further argument was presented in relation to Khan and Wright who had been granted bail with conditions because the custody time limits had elapsed. They do not seek an allowance under Article 6 (not least because it was their trials that had delayed the sentencing exercise) but they do seek an allowance for the restrictions on their liberty consequent upon the terms of their bail. Although not qualifying for an allowance consequent upon lengthy electronically monitored curfew (see s. 240A of the Criminal Justice Act inserted by s. 21 of the Criminal Justice and Immigration Act 2008), it was submitted that some allowance ought to be made to reflect those conditions. The judge took the view that they had been “at liberty and free to get on with their lives” and he declined to reduce any sentence because of the “minor restrictions of liberty involved in this case”: he was entitled to take that view and, in our judgment, was correct to do so. We do not interfere with that conclusion.[43]The final general ground of appeal concerned the imposition of travel restriction orders on each of those concerned in this prosecution. Thus, Srao and Samplay complain that a travel restriction order was made in each of their cases for 5 years, yet only for 2 years in relation to Shaw. Khan and Wright complain that any travel restriction order was made on the basis that their offences did not involve any element of importation or aspect of foreign involvement.[44]By s. 33 of the Criminal Justice and Police Act 2001, a travel restriction order may be imposed on an offender sentenced to a term of four years imprisonment or more for a drug trafficking offence (defined by s.34, subsection 1(a) of which includes offences under s. 4(3) of the Misuse of Drugs Act 1971 supplying controlled drugs or being concerned in the supply of controlled drugs, by section 1(d) importation offences and, by subsection 1(e), conspiracy to commit any one of those offences). The minimum duration of a travel restriction order is two years and, by s. 33(2) the court must always consider whether such an order should be made and must give reasons where it does not consider that order to be appropriate. Given the terms of the statute, it would not be sufficient simply to assert that the offences did not concern a foreign element.[45]It is clear from the decision of this court in R v. Mee [2004] 2 Cr App R (S) 434, followed in R v. Fuller [2006] 1 Cr App R (S) 52 that the order is designed to prevent or reduce the risk of offending after release from custody and is most likely to be appropriate in cases involving importation. The length of the order is that which is required to protect the public in the light of the assessment of risk of re-offending taking into account age, previous convictions, family contacts and employment considerations. The judge found no good reason for not imposing an order in each case: he was right to do so. In that regard, we underline that if the minimum period is for a period of four years or less, it is open to an offender to apply to revoke or suspend the order after a period of two years at which time the court must have regard to the offender’s character, his conduct since the making of the order and the offences of which he was convicted: suspension can be justified on compassionate grounds in exceptional circumstances. If the order is for a period between 4 and 10 years, 4 years must elapse before application can be made. We will consider the particular orders in the context of each offender.

Individual Appeals

[46]On behalf of James Shaw, Mr Carus Q.C. argued that although importations at the level involved in the case could attract sentences of the order passed on Shaw, this conspiracy never really got off the ground with the result that the sentence was far too high; he also submits that there was no reason for the discount for plea to be less than that given to Srao (who pleaded guilty at the same time). For the reasons that we have given, we do not accept that the broad assessment of the judge can be faulted and, although we recognise that Srao had a more significant role in setting the plans, any sentence passed on Shaw had to reflect the seriously aggravating feature that it was committed only relatively recently after his release from a substantial 15 year sentence for an identical offence.[47]In the circumstances, we believe that the judge was entitled to start at a sentence in the order of 24 years discounted for his plea and the delay in passing sentence. We see no reason, however, for differentiating substantially between the discount allowed to Shaw and that allowed to Srao (although whether either was truly entitled to a discount at the level decided by the judge is a slightly different point): neither does the judge explain this discrepancy. In all the circumstances, making the same allowance as did Judge Hammond for the time spent on recall while waiting sentence, the appropriate sentence on count 1 is 15 years imprisonment. The other sentences will remain unaltered as will the travel restriction order.[48]In relation to Rikki Srao, Mr Nolan Q.C. also argued that the starting point was too high on the basis that the idea of using bitumen as a vehicle in which to hide the importation of cocaine fizzled out leaving the conspiracy a heroic failure. That is not how the judge perceived the case and neither is it our assessment. Srao did all that he could to bring the conspiracy to fruition, had invested substantially in it and, in our judgment, would have continued to find a way to achieve the result that he sought. Neither do we accept that he was entitled to a higher discount than he received (if, as to which we make no further comment, he was entitled to as high a discount as he received. The only adjustment that we consider it appropriate to make is to reduce the sentence by six months to allow for the delay.[49]Mr Nolan also challenges the 5 year term of the travel restriction order and prays in aid the lesser term ordered in the case of Shaw and the fact that it will impact on his relationships with his family who reside in India. Although not a pre-requisite for the making of the order, the fact that Srao was so heavily involved in setting up this conspiracy abroad, a substantial order was inevitable. On the basis that his wish to travel to India may encourage him even after release to demonstrate that he has addressed his offending behaviour, we will reduce the travel restriction order to 4 years which could permit an application, if the basis for it can be established after 2 years.[50]Mr Balbir Singh argued that the sentence imposed on Samplay was “far too high” and, making appropriate allowance for his plea of guilty and the basis of that plea, submitted that the sentence was over twice that which was appropriate. Comparing the case to Hardy, he went on to argue that Samplay should have received a lower sentence than in there imposed. For the reasons which we have explained, we do not agree: this conspiracy was continuing and had not been abandoned: we have no doubt that every effort was being made to overcome the problems that had arisen. Further, we do not accept the way in which Mr Singh seeks to minimise Samplay’s involvement which was as a crucial link between two men who brought different skills to the conspiracy and, between them, had the experience and capacity to bring it to fruition. Furthermore, we do not accept that Samplay’s comparatively previous convictions for possession of cocaine with intent to supply (from which he had only just been released) are merely coincidental: as with Shaw, they demonstrate a determined offender unwilling to learn from previous lengthy imprisonment.[51]Whether the judge was correct to describe Samplay as a principal or whether he is better described as a vital link between Shaw and Srao may not substantially affect the sentence which it was appropriate for him to receive. What we are prepared to accept, however, is that in the light of his basis of plea, and the fact that he was not involved in the later offences, he should not have been considered in quite the same bracket as Shaw and Srao. In the circumstances, the starting point of 20 years was marginally too high. Reflecting this feature against the importance of his role and his prior convictions, we take the view that the appropriate starting point was in the order of 18 years from which 30% falls to be deducted to reflect the guilty plea along with a further 6 months consequent upon the delay. In the circumstances, we reduce his sentence of imprisonment to 12 years.[52]Mr Singh also challenged the travel restriction order arguing in writing that there was no basis for making such an[53]We turn to Mahmood Khan and Charles Wright who fell to be sentenced for their involvement in offences which concerned a far smaller quantity of cocaine (namely 1 kilogram) than the conspiracy which Shaw, Srao and Samplay had admitted. There was an argument between Mr Daw on behalf of Khan and Mr Csoka on behalf of Wright as to who was entitled to greater credit for the timeliness of his guilty plea; in particular, it appears as if Judge Hammond allowed Wright 37.5% as opposed to 25% for Khan although, on the face of it, Khan had pleaded guilty a year earlier. On examination, however, it is accepted by the Crown that Wright had offered to plead guilty to the offence for which he later fell to be sentenced at a very much earlier stage but the offer had not then been accepted. As to the extent of the discount, given that the judge made it clear that he believed Khan’s involvement to be marginally more serious than that of Wright, yet both ended up with the same starting point of 8 years although the sentences differed by a year. It may be that the judge’s articulation of the starting point in Wright’s case was a slip of the tongue because there is no doubt that the ultimate sentence reflected his expressed view of comparative guilt.[54]In the light of the authorities, there is no doubt that the starting point for involvement (whether as a conspirator or one who is concerned) in the supply of 1 kilogram of cocaine is upwards of 10 years and we do not accept that either of these appellants can complain about their sentence, after allowance for the plea of guilty and other mitigating features: although we recognise the good reports that they have received which augur well for the future, we do not consider it appropriate to allow any further reduction from the sentence for this serious offending. Further, as to the comparative exercise, we are not prepared to undertake a mathematical calculation but, on the basis that the sentences reflected the view of the judge as to the comparative responsibilities of each, we are not prepared to interfere with them. As to the impact of the bail restrictions, we have concluded that the judge was right to ignore them.[55]The final appeal in both cases concerns the travel restriction order made for two years. Both Mr Daw and Mr Csoka argue that their offence was solely based in the UK; Mr Daw went so far as to suggest that there was no proper basis for making the order and that it was wrong in principle. They note that no such order was made in the case of Redshaw and Pritchard. For the reasons that we have given, we reject the argument that the order was wrong in principle; as to its justification, in our judgment it is highly material that their involvement in their respective offences was with or through Shaw who has demonstrated foreign links both with his present and past offending. In our judgment, there was no reason for not making the orders in both cases and both Khan and Wright received the minimum term. That the judge did not make an order in the case of Redshaw or Pritchard is beside the point. Suffice to say, these appeals are dismissed.

Conclusion

[56]In the circumstances, we grant Shaw and Srao leave to appeal. In respect of Shaw, we allow the appeal and reduce the sentence on count 1 from 16 years 9 months to 15 years imprisonment; his other sentences remain the same. In respect of Srao, we allow the appeal and reduce the sentence on count 1 from 15 years to 14½ years (reflecting only the delay); we also reduce the travel restriction order from 5 years to 4 years. In respect of Samplay, we allow the appeal and reduce the sentence on count 1 from 14 years to 12 years; we also reduce the travel restriction order from 5 years to 4 years. We dismiss the appeals of Khan and Wright. In each case, time served on remand will continue to count towards sentence.

order

as we have explained above, that submission misunderstands the legislation. His family also live in India (which he has not visited since 1997) but it is argued that he would like to go there once released. There were good reasons for reducing the term of the order in relation to Shaw; there is no good reason in relation to Samplay but we will take the same approach as taken in relation to Srao and reduce the term to 4 years.

Cited in 2 later judgments