Quartey, R. v [2013] EWCA Crim 2518

[2013] EWCA Crim 2518Case No 201304005 A2, 201304039 A2, 201304341 A2
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 18 December 2013
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE JACKSON
MR JUSTICE HOLROYDE
HIS HONOUR JUDGE MILFORD QC
(SITTING AS A JUDGE OF THE COURT OF APPEAL CRIMINAL DIVISION)
R E G I N A
v
ALFRED QUARTEY
LEVY SERDE REVARDEAU
ANTHONY NDUNGU
Computer Aided Transcript of the Stenograph Notes of
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Miss E Goodall appeared on behalf of the Applicant Quartey
Mr R Job appeared on behalf of the Appellant Revardeau
Mr S Blom-Cooper appeared on behalf of the Appellant Ndungu
J U D G M E N T (Approved)
Between
QuarteyDefendantRCrown
[1]MR JUSTICE HOLROYDE: On 5 July 2013 in the Crown Court at Woolwich, His Honour Judge Topolski QC sentenced 15 defendants, all but one of them in the age range 15 to 20, who had pleaded guilty to, or been convicted of, offences relating to the supply of cocaine and heroin in Plumstead. Three of those young defendants are now before the court.[2]Alfred Quartey, 19 at the time of the offending and now aged 20, had pleaded guilty to ten offences of being concerned in the supply of Class A controlled drugs, those offences reflecting five occasions when both drugs were being sold. He was sentenced to detention in a Young Offender Institution for 4 1/2 years on each count concurrent. He renews his application for leave to appeal against sentence following refusal by the single judge.[3]Levy Revardeau, 19 at the time of the offending and now 21, also pleaded guilty to ten offences of being concerned in the supply of Class A controlled drugs. His case similarly involved five occasions when both cocaine and heroin were being sold. He was sentenced to concurrent terms of 3 years' detention in a Young Offender Institution. He appeals against that sentence by leave of the single judge.[4]Anthony Ndungu, 18 at the time of the offending and 19 now, pleaded guilty to two offences, one of being concerned in the supply of cocaine and the other relating to heroin, those offences being committed on the same day. He too received concurrent terms of 3 years' detention in a Young Offender Institution; he too appeals by leave of the single judge.[5]We should record at the outset our gratitude to all counsel for the skill and economy with which they have made their extremely helpful submissions to the court.[6]The facts, in brief summary, were these. In June 2012, the police launched a proactive covert test purchase operation in respect of the supply of crack cocaine and heroin in the Plumstead area. Between 25 June and 4 September a courageous undercover police officer went into that area on 30 occasions posing as a drug user and purchasing drugs which cost just under £800.[7]The conspiracy to supply those drugs was led by Ahmed Karshe, now 19 years of age. He stood trial, was convicted by the jury of two counts of conspiracy to supply Class A drugs and was sentenced to concurrent terms of 7 1/2 years' detention in a Young Offender Institution. The conspiracy was well organised and was designed to minimise the risk to any one individual of being caught in possession of much incriminating evidence. Two designated mobile telephone numbers were in use. Those wishing to purchase drugs could ring those numbers at any time of the day or night. They would be able to know the numbers because those involved in the conspiracy distributed slips of paper bearing the relevant numbers. The appellant Revardeau was stopped in mid-June and found to be carrying 20 to 30 such slips of paper.[8]The phones would be held and used by more senior members of the conspiracy. They would take orders and direct prospective purchasers to a particular location, generally the stairwell of one of a number of blocks of flats in Plumstead, where a supplier would be positioned. There would generally be a number of runners at that location. They would be in possession of the drugs to be sold. They would receive the purchase price and pass it up the chain. Often other runners would be on hand to keep watch. The more senior conspirators operating the telephones kept themselves well away. No one, save for the one situation which we will shortly mention, carried large quantities of drugs. The drug courier would not hold the money.[9]The exception which we have just mentioned is this. Generally speaking, the supplies of drugs were brought to the various dealing locations in the form of wraps secreted in the anus of one of those involved. Up to 50 wraps at a time would be delivered in that way.[10]The consequences of this criminal arrangement for the law-abiding residents of the community were severe indeed. In addition to the detritus often to be associated with drug-related activity, those living in the blocks of flats would find themselves having to enter the building through a stairwell stained with blood and saliva, and reeking of urine. In addition, those who had delivered the drugs to the scene in the manner which we have indicated would simply extract the packages from their rectums and discard the soiled wrappings in the stairwell. This court has read the impact statements provided by some of the local residents. They make chilling reading. They speak, for example, of trying to make their way up the stairs without touching the handrail, so disfigured had the public parts become. They speak of the extreme difficulty of trying to bring up children in such surroundings. They describe how friends and relatives had stopped visiting them in their homes because they would have to pass through the scenes in the stairwell which we have described. They speak above all of the constant fear and anxiety engendered by crowds of young people, mainly males, openly conducting wholly criminal activity in the public parts of the building. We have no doubt that that feature of the case was a gravely aggravating one, and His Honour Judge Topolski QC rightly identified it as such in his sentencing remarks.[11]The undercover officer was provided with one of the dealing phone numbers in late June by a defendant Liban Ahmed, the oldest defendant, aged 31. Two days later, the undercover officer met one of the 17-year-old defendants and purchased wraps of heroin and cocaine for £40. Ahmed arrived and told the undercover officer that he, the officer, had now met "Ahmed's boys", he now knew where they were to be found and should continue to use the phone number he had been given. The undercover officer continued to do so. On 10 July he was supplied with crack cocaine by Revardeau. On 19 July Ndungu was involved in handing over drugs which the undercover officer was purchasing. On 25 July both Revardeau and Quartey were present when one of the 17-year-olds was handing over drugs for which the undercover officer was paying. On the following day, 26 July, it was Revardeau who asked the undercover officer what he wanted to buy. A 16-year-old and a 17-year-old defendant attended. One took the money, the other supplied the drugs. So the transactions went on. It is not necessary to go into any detail about them.[12]In mid-August, the undercover officer significantly increased the number of wraps he wanted to purchase. He spoke to the ringleader, Karshe, on the phone. Significantly, it was on that occasion the applicant Quartey who took the money, and the appellant Revardeau who supplied six wraps each of cocaine and heroin. A few days later, Revardeau was again involved in admitting the undercover officer to the block and flats and passing on the money through a 15-year-old defendant to Quartey. Finally, on 4 September, Quartey took the money direct from the undercover officer and the 15-year-old supplied the wraps of heroin and cocaine.[13]When Quartey was arrested, he was in possession of £275. He was not the only defendant caught in possession of a significant sum, but the money he held was in a larger sum than was the case with any other defendant. None of the defendants made any comment when questioned in interview.[14]As to roles played by the various defendants, the submission of the Crown was that the majority, particularly the younger defendants, were runners. They were doing the bidding of those higher up the chain. Quartey was placed by the Crown as being at the next level up. He and another defendant called George Watson exercised a degree of control over those lower down the chain. Each of them was seen with large amounts of cash. They appeared when a larger deal was done.[15]Watson had been in contact with the dealer phone numbers on over 500 occasions, and with Karshe on nearly 200 occasions. The applicant Quartey had contacted the dealing numbers on nearly 300 occasions and had contacted Karshe's phone on 72 occasions. However, the phone number which he gave upon arrest was not his own phone number but that of his girlfriend. When that was investigated, it transpired that that phone had been in contact with the dealer phone numbers on more than 2,400 occasions.[16]Karshe, as we have indicated, was placed by the prosecution as being at the top of the conspiracy. He was actually arrested in possession of one of the telephones used for dealing and he was manufacturing crack cocaine at an address with which he was associated.[17]The learned judge faced a difficult sentencing exercise. There were many defendants. Some were very young. It was, of course, necessary for him to form his view as to where each of them came in the ranking of criminality and culpability. The judge had the advantage that he had presided over the trial of the two defendants who had contested their guilt. Moreover, as is immediately apparent from the particularly careful and detailed sentencing remarks, the judge had an extremely full knowledge of the case generally and of the roles played by individual defendants. We should mention that, in the course of his lengthy sentencing remarks, the learned judge at one or two points by a slip of the tongue referred to sentences of imprisonment, when he meant to refer to sentences of detention in a Young Offender Institution. Nothing turns on that; the sentences noted in the court record were correctly described.[18]Dealing first with matters of generality, the learned judge described this as a sophisticated and highly organised criminal operation. As he said, in stark but entirely justified terms, the aim was to sell as much as possible to as many as possible. The judge noted, as we have said, the severe impact upon the local community. He concluded that with the exception of four defendants, including Karshe and the applicant Quartey, the defendants could be described as "runners", and in terms of the Sentencing Guidelines fell into the category of a lesser role. He regarded Quartey and Watson as having played a significant role, Karshe as having played a leading role, within the terms of those guidelines. This was a case of street dealing. It fell into category 3. An aggravating feature for those who were adults was that the offences involved the use of some very young teenagers. A further and substantial aggravating factor affecting all defendants was the impact upon the community.[19]The judge of course properly had regard to all mitigating factors. He specifically reminded himself of the importance of taking into account the age of the offenders. As he observed, with the exception of Ahmed, even those who were adults were only young adults and the court, if possible, should impose a shorter sentence than would be appropriate for an older defendant.[20]It appears, and we proceed on the basis, that in the case of each of the three defendants now before this court the judge allowed full credit for their respective guilty pleas and thus reduced their sentences by one third.[21]Turning now to the individuals, the applicant Quartey had a previous conviction for robbery in 2010, a conviction for obstructing a drug search later in that year, and a conviction for supplying cannabis in May 2011. The judge noted the number of times when his phones had been in contact with the dealer line and the evidence to which we have referred as to the role played by Quartey. The judge, in his sentencing remarks, summarised the position in relation to Quartey as follows at page 40:
"As I said, you do not suggest that you should not be treated as falling into the significant role category. Your counsel submits that I should place you at the lower end of it. It is suggested that there is no evidence that you personally stored, nor transported the drugs, and that you acted on instruction of others. This was, it must not be forgotten, a joint enterprise. Sophisticated and highly organised as I have said ... I am in no doubt that the role given to you by the prosecution is the correct one. You come, sad to say, from a thoroughly decent working, hard-working family. You will have to find a way of repaying them for the shame you have brought on them, and why you just did it for the money."
[22]The judge commended a letter written by Quartey indicating that he had resolved to make good use of his time in custody, but concluded that the appropriate sentence was a total of 4 1/2 years' detention.[23]On behalf of this applicant, Miss Goodall's grounds of appeal are these: first, that the judge must have taken too high a starting point; or, secondly, that he must have allowed insufficient credit for the guilty plea; and thirdly, that the sentence was excessive when compared with that imposed upon Karshe. On those grounds she submits that the sentence was manifestly excessive. She points out, correctly, that Quartey only joined the offending after it had started and therefore could not be said to have been responsible for any planning or organisation of it. His involvement was on five occasions over a period of a month. It was submitted by Miss Goodall that overall his role, although rightly placed in the significant category, was not much greater than several of his co-accused who were placed into the lesser category and received markedly more lenient sentences. It should, however, be remembered that those defendants were significantly younger.[24]Miss Goodall went on to submit that, whilst the impact upon the community was an aggravating factor, offending of this nature almost invariably has an impact upon society, and she accordingly submitted that by categorising the offence as category 3 the sentencing guidelines to some extent already take that into account. Whatever may be the general merits of that submission, we have no doubt that in this case the impact upon the community was shown by the clearest evidence to be a most severe one and a serious aggravating feature.[25]Miss Goodall submitted finally that, although Quartey was not of good character, his previous convictions did not greatly aggravate his offending. In particular, his offence of supplying cannabis involved the social supply to a friend of a small quantity.[26]It is submitted on Quartey's behalf that this offending occurred at a time when he was at something of a low ebb. He had spent some time remanded in custody on a charge which ultimately was not pursued against him. Miss Goodall submits that upon his release, without of course any of the sort of support provided to a person who had been convicted and had served a sentence, Quartey was prey to bad influences.[27]The sentencing guidelines for street dealing and a significant role indicate a starting point of 4 1/2 years' custody and a range of 3 1/2 years to 7 years. We agree with Miss Goodall that it is to be inferred that the judge must have taken a starting point towards the top of that range. It was a lower starting point than in the case of Karshe, who was convicted after trial of the offences of conspiracy and who had played a leading role, but on the other hand was nearly a year younger than this applicant.[28]In our judgment, it is not possible to say that the judge fell into error either in his assessment of Quartey's role or in his decision as to the appropriate sentence. In refusing leave to appeal, the single judge, Andrew Smith J, said this:
"This operation had two seriously aggravating features: (i) the corruption of youngsters as young as 14 and (ii) its social impact. The judge was entitled to give great weight to these considerations and, having concluded that the applicant had a significant role, he was entitled to conclude that the sentence should be toward the top of the range of terms indicated by the Definitive Guideline, subject to credit for pleas. I cannot accept that the Judge did not give proper weight to mitigating features or that the sentence was so long that the Court of Appeal should reduce it. It might be that Mr Karshe's sentence was relatively merciful given that he had a 'leading' role, but I cannot accept that this gives rise to a proper sense of injustice by reason of overall comparison of the applicant's sentence with others involved in the offending."
[29]We entirely agree with those observations. It may well be that Karshe's relative youth saved him from a longer sentence than he in fact received; but be that as it may, his sentence does not provide any ground for saying that the sentence on the applicant Quartey was too long. It is not, in our judgment, possible to argue that Quartey’s sentence was manifestly excessive in length.[30]Turning to the appellant Revardeau, he was a young man of previous good character. It appeared from the contents of a pre-sentence report that he had idolised the lifestyle of those higher up in this criminal organisation and had been motivated to play his part in the offending by the desire to gain money and what could be bought with that money. The pre-sentence report was relied upon in support of a general submission that, having been remanded in custody, this young appellant had had something of a wake-up call.[31]On his behalf, it is submitted by Mr Job that the judge took too high a starting point, or alternatively gave insufficient credit for the plea, and that the judge gave insufficient weight to Revardeau's young age and previous good character. Understandably, Mr Job stresses those features in the appellant's favour.[32]This appellant was placed by the judge into the category of a lesser role. The sentencing guidelines indicate a starting point of 3 years' custody and a range of 2 years to 4 1/2 years. Mr Job's essential submission is that in all the circumstances of the case there was no reason or justification for the learned judge to take a starting point any higher than the guideline of 3 years, and no justification for taking a starting point at the top of the relevant range. He further submits that there is some disparity to be found when comparing Revardeau's position as a young man but not much more than 18 years old receiving a significant custodial term, and those defendants who were under 18 at the time of sentence and were dealt with by non-custodial disposals.[33]We have considered those submissions both in their written and their oral form. We are unable to accept them. Young though he was, Revardeau was in fact older than most of his co-accused. His case, therefore, did have the aggravating feature that he had involved himself in crime with co-defendants who were significantly younger. He was motivated by greed and by a desire to emulate the lifestyle of others who had enriched themselves by crime, and on those grounds was prepared to involve himself on five occasions in the sale of Class A drugs. He had in addition, as we have observed, been found in possession of the slips of paper which were plainly designed to encourage as many persons as possible to buy drugs from this criminal organisation.[34]In our judgment, Revardeau's role in this case did not fall far short of coming within the significant category. When all the factors to which we have referred are taken into account, we conclude that there can be no criticism of the judge taking a starting point in Revardeau's case at the top of the range for the category of lesser involvement. The learned judge was clearly in the best position to assess comparative roles and culpability. Even if it could be said that any other defendant had been fortunate, that would not make the sentence on this appellant excessive. We are satisfied that Revardeau's sentence was not manifestly excessive.[35]We turn finally to consider the position of Ndungu. He was aged 18 at the time of his involvement which was limited to a single day. Mr Blom-Cooper rightly points out on his behalf that that was a day in about the middle of the overall period of offending. Thus, submits Mr Blom-Cooper, Ndungu's absence after that one day is a point significantly in his favour. He too advances grounds of appeal based upon the propositions that the starting point was too high or the credit for plea insufficient. He too seeks to point to comparisons with other defendants, in particular one John Abodunrin, which, Mr Blom-Cooper suggests, should lead us to conclude that the sentence on Ndungu was excessive and unfair. We say at once that in seeking to compare Ndungu's position with Abodunrin, it is necessary to bear in mind that Abodunrin, although older and with a relevant previous conviction, was likewise only involved on one occasion, and whilst it is true that he was offending whilst on licence, the learned judge specifically took into account that by the time of sentencing Abodunrin had been recalled from that licence with an inevitable impact upon the overall time which that defendant would spend in custody. In Ndungu's case, although he did not have a bad criminal record, he had a conviction and before that a formal reprimand for offences of possession of a Class B controlled drug.[36]We have had particularly careful regard to the personal mitigation in Ndungu's case, which is rightly emphasised in the written and oral grounds of appeal. In his case, it was argued that the offending occurred at a time when his life was at a particularly low ebb. He had for a period left his family home. He was living on the streets. He was vulnerable because he had some time previously been the victim of an assault in which he had suffered the loss of the sight in one eye. It was submitted that he had, in effect, been recruited by someone whom the appellant had initially thought had been trying to help him in his homeless circumstances. We have no doubt that the learned judge in his careful sentencing exercise gave full weight to those mitigating features.[37]We conclude that in this appellant's case also, the judge was in the best position to assess comparative roles and culpability, and we are not persuaded that there is any ground on which this court should interfere with the sentence passed in Ndungu's case. Despite the helpful submissions on his behalf, we conclude that his sentence is not manifestly excessive.[38]For those reasons, the application of Quartey and the appeals of Revardeau and Ndungu fail and are dismissed.