Welsh & Ors v R [2014] EWCA Crim 1027

Case No 201303146 A7, 201303147 A7, 201304072 A7, 201303034 A7, 201303074 A7, 201303019 A7, 201302943 A7, 201303148 A7, 201303042 A7, 201303036 A7,201303020 A7, 201304985 A7, 20130308 A7, 201303067 A7, 201303420 A7,201303073 A7, 201303021 A7, 201304188 A7, 201303144 A7, 201304207 A7[2014] EWCA Crim 1027
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT LIVERPOOL
His Honour Judge Aubrey Q.C.
T2012 8062/8073/8092/8095/8098
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/05/2014
Before
THE PRESIDENT OF THE QUEEN’S BENCH DIVISION(SIR BRIAN LEVESON)MR JUSTICE BLAKEMR JUSTICE GREEN
Between
THE QUEENRespondent
Mr Francis Fitzgibbon Q.C.for Christopher Welsh juniorMr Damian Nolan for Christopher Welsh seniorMr Brendan Carville for Mark ShieldsMr Eric Lamb for Christopher Amos, Brian Woods, Steven Tynan,David McIver, Abraham Salim,Steven WoodMr Daniel Travers for James EdmondsMr Michael Bagley for Christopher Riley, Kevin O’Shea, Liam Clotworthy, James Welsh, Kenneth Fletcher, Kevin Jackson, Anthony Breen, David ChambersMr Tyrone Smith for Martin FeeleyMr Martin Reid for CrownHearing Hearing date : 7 May 2014
JudgmentSir Brian Leveson P :
[1]Between 13-20 May 2013, in the Crown Court at Liverpool, His Honour Judge Aubrey Q.C. sentenced a total of thirty men for their parts in a wide ranging conspiracy to supply drugs of class A (heroin and cocaine) in truly massive quantities. Sixteen of those sentenced now appeal against sentence with the leave of the single judge and four renew their applications each of which had been refused; two require extensions of time. At the start of this judgment, it is appropriate to pay tribute to the care and detailed consideration given to this case both by the judge and by Openshaw J (who considered 19 of the applications for leave to appeal): their work has made our task very much easier than it would otherwise have been. We have also been much assisted by counsel on both sides and, in particular, by Mr Martin Reid for the Crown who has brought focus to the generic points that have been argued.[2]It is appropriate to start with an overview of the case. Operation Blenheim was a police investigation into an organised crime group in Liverpool which supplied large quantities of Class A drugs to crime groups in Glasgow for onward distribution. The conspiracy involved the use of a number safe houses in Liverpool to store and mix drugs. The drugs were packaged using hydraulic presses and metal moulds. Some of the drugs seized were of high purity, close to importation. Automatic Number Plate Recognition evidence and telephone evidence showed that between September 2011 and October 2012, the conspirators made 111 trips to Glasgow to supply drugs, adulterants and collect cash. In total, 23 kg. of Class A drugs (19 kg. of heroin, 4 kg. of cocaine and 1 kg. of ‘crack’ cocaine) along with 107 kilograms of adulterants with the potential to realise drugs with a street value of £6.7 million were seized during the course of the conspiracy. However, if the seizures were representative, indications were that the couriers transported between one and two kilograms of Class A drugs as well as adulterants on each trip. In view of the number of trips made it could be inferred that overall the conspiracy involved quantities of Class A drugs in excess of 100 kilograms worth between £100 million and £200 million.[3]As with any case of this nature, the role and responsibility of the offenders ran from the organisers, making vast profits from the operation through to those at the bottom of the chain of organisation, who, although knowingly involved in a conspiracy, were engaged upon it only peripherally. It was the task of the judge to have regard to s. 143 of the Criminal Justice Act 2003 and, when determining the appropriate sentence for each offender, to consider both culpability and harm. At the same time, s. 125(1) of the Coroners and Justice Act 2009 required the court to follow any relevant sentencing guideline unless it was contrary to the interests of justice to do so: in that regard, the definitive guideline for drug offences (effective for all those sentenced on or after 27 February 2012) was clearly of the highest relevance.[4]Although a number of the appellants and applicants have individual issues to raise, in the main, the substantive arguments advanced on this appeal concern the applicability of the guideline concerning supply of a controlled drug, its relationship with the guideline for importation, the extent to which a sufficient distinction was drawn between those at the centre of the conspiracy and others and the impact of personal mitigation. We will deal with these issues generically before considering the detail of each of the appeals and applications that have been argued before us.

The Definitive Guideline

[5]Although the judge considered that the definitive guideline did not strictly apply to offences of conspiracy, it is clear from R v McCalla [2012] EWCA Crim 2252 and R v Khan [2013] EWCA Crim 800 that it does. Not only would it be anomalous for commonplace criminal activity to be inside or outside of the guideline depending on the way in which the charge had been framed, as Treacy LJ went on to observe (at para 27):
“[M]uch of the language within the guideline with its reference to differing roles, influence on others in a chain, links to original source, operational or management functions, involvement of others in the operation, awareness and understanding of the scale of the operation, and performing a limited function under direction is entirely consistent with an activity which could be charged as a multi-offender conspiracy.”
[6]Furthermore, the structure of the guideline is specifically designed not as a rigid framework with mutually exclusive characterisations of behaviour, but rather as providing a range of identifying characteristics to assist the judge to place a particular offence within the range of such offences and thereby to facilitate consistency of approach to sentencing. Such a framework works equally well for offences of conspiracy as for any substantive offence. As Hughes LJ explained in R v Healey [2012] EWCA Crim 1005 (at para 9):
“It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one or the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations.”
[7]That is not to say that the judge’s approach to sentence in this case has been undermined by his error in that regard. The judge used the descriptors within the guideline (for leading, significant and lesser roles) for the purposes of distinguishing between the roles played by different offenders and, thus, in fact, correctly used the guideline. He also went on to observe that, in relation to heroin and cocaine, the highest category of harm identified an indicative quantity of drug upon which the starting point was based as 5 kg, accurately identifying the rubric to the guideline which makes it clear:
“Where the operation is on the most serious and commercial scale, involving a quantity of drugs significantly higher than category 1, sentences of 20 years and above may be appropriate, depending on the role of the offender.”
[8]As for the relationship between the offence of supplying a controlled drug and importation (or, in either case, conspiracy to commit the offence), it is argued that, as a matter of principle, it is appropriate to ensure that the highest sentences are reserved for the latter offenders: in R v Tourh [2009] EWCA Crim 874 for (among other offences) conspiracy to supply a controlled drug of class A, a sentence of 25 years imprisonment was reduced to 22 years for that reason (articulated at para 43). Whether or not this observation can be elevated to the status of a principle, we doubt that it has any practical application to cases which fall to be considered under the guideline which has identical starting points in relation to both offences for leading and significant roles at category 1 and only marginally reduces the starting point (by one year) for a lesser role in relation to a supply offence.[9]It may be that the culpability at the very highest level is increased when the complexities of arranging importation are taken into account but we doubt whether leading and significant roles in the most structured, persistent and heaviest supply cases (of which this is an example) merit such a distinction. In any event, the definitive guideline identifies the circumstances in which leading, significant and lesser roles can be determined irrespective of the quantity of drug involved and the guideline is careful to identify the use to which indicative quantities can be put. As for weight itself, Hughes LJ in R v Boakye [2013] 1 Cr App R (S) 2, page 6, [2012] EWCA Crim 838 explained that the weights which determine the categories are not thresholds but indications of the “general region” of weight that goes into the relevant category: “it is not exclusively an arithmetical process”: see para. 39.

Insufficient Distinctions in sentence

[10]A large number of appellants argue that the judge failed adequately to reflect the relative culpability of the offenders with a sufficiently wide range of sentences. Judge Aubrey certainly referred to the principle of parity commenting that in cases of this nature there was bound to be an element of “crowding or bunching” as to length. The word “crowding” comes from R v Brookhouse [2004] EWCA Crim 3471 in which, having analysed a large number of cases concerned with importation, the court recognised (at para 66):
“20 years is clearly justified on the authorities for an important, but secondary, participation in large scale importation of class A drugs. You do not receive, for the reasons which we have indicated, sentences above 30 years, although they might be possible. In between those two points have to be fitted quite a large number of disparate people who clearly are more involved than those who might receive 20 years, but less involved than those who might not receive 30 years. We seem to have a crowding of this kind in the present case.”
[11]In Attorney General's Reference Nos 99-102 of 2004 [2005] Cr App R(S) 82, a 20 year starting point was said to be at the bottom of the bracket for a major organiser of wholesale distribution within this country and, again in the context of importation, Scott Baker LJ in R v Farman Ali [2008] EWCA Crim 1855 made the point (at para 22) that “once the … 20 to 30 year bracket is reached, there is a considerable amount of bunching of varied circumstances”.[12]In our judgment, these observations do no more than reflect the inevitable position which a judge has to confront when seeking to differentiate the role and responsibility of a large number of offenders in the context of the most serious crime in which regard it has to be borne in mind that the penal consequences of conviction extend beyond a custodial term but also include confiscation of the proceeds of crime. Where (as here) quantities exceed category 1, so that sentences of 20-30 years might come into play as explained in the rubric to the guideline, it is an exercise of judgment to scale up the corresponding sentences for those at the bottom rung of leading along with significant and lesser roles in such a way that fairly reflects not only the part played by the offender then being sentenced but also his comparative significance within the offending as a whole. Given the limit beyond which a sentence for this type of offence does not normally extend, it is not surprising that at the highest levels, sentences on different offenders will be nearer to each other than might otherwise be the case.[13]Arguments about failure to differentiate either at all or sufficiently between different offenders have to be treated with care for other reasons. The approach of the court may be no more than an enunciation of the fact that once the potential harm is sufficiently substantial, different offenders might demonstrate their culpability in different ways, thereby justifying what may be similar sentences.[14]Insufficient distinction between offenders is another way of putting the argument that two identical sentences do not reflect similar criminality. In granting permission to appeal, Openshaw J considered it arguable that:
“the judge made no sufficient distinction between the sentences passed on [the] three or four principal offenders and the others, who were – or may have been – in an altogether different league of offending.”
He went on to suggest that if those sentences were reduced, the judge’s “hierarchy of criminality” would be unpicked such that the differences between the principal offenders and the others is not sufficient to reflect their different roles. In reality, this is the gravamen of these appeals and requires consideration of the facts in each case and, in particular, the offenders immediately under the principal leaders or organisers. Having said that, as Mr Martin Reid for the Crown observes, the starting points for the 30 offenders (all of whom fell to be sentenced for the same single count), assessed before discount for guilty pleas, ranged from 7½ years to 25 years, excluding the discounts made for those with very poor health.[15]As Moses LJ explained in R v Coleman & Petch [2007] EWCA Crim 2318, we recognise that the test articulated in R v Fawcett [1983] 5 Cr App R (S) 158 (whether right thinking members of the public would consider something had gone wrong with the administration of justice) provides little guidance as to the circumstances in which it is thought appropriate to reduce an appropriate sentence to reflect the position of a co-defendant upon whom a ‘quite inadequate’ sentence has been passed (to use the phrase in R v Stroud [1977] 65 Cr App R 150 at 154 where an appeal against the first sentence was dismissed). All that it is appropriate to say is that the court must look at the overall sentences passed and consider whether the judge has failed as a matter of principle or in the reasonable exercise of his discretion to reflect the comparative criminality of the offenders: that this court might have made a slightly greater distinction is neither here nor there.

Antecedents and Personal Mitigation

[16]The definitive guideline proceeds on the basis that the starting point is fixed without reference to past record; reflecting s. 143(2) of the Criminal Justice Act 2003, prior convictions, particularly if relevant in nature, constitute an aggravating factor. On the other hand, prior good character and lack of previous convictions or relevant convictions may reduce the seriousness of the offence or reflect personal mitigation. Other relevant factors include remorse, a willingness to address offending behaviour and personal circumstances. These last features can obviously play a significant part in the determination of sentence at the lower end of the ranges: for crime as serious as that involved in these cases, however, the part that they can play is very much more limited.[17]The judge underlined the gravity of all drug supply offences and did not need to emphasise the degradation and human misery that drugs cause to those who ingest them, their families and the wider community (impacted not least because of the increase in crime committed to pay for their acquisition). Equally, involvement in serious crime impacts on the offender and his aspirations and is likely to create the type of pressure that family members have articulated in letters submitted to the judge and seen by the court.[18]Unfortunately for the families concerned, the offender has brought these difficulties upon himself and they join the list of those adversely affected by his criminality: these issues can have little impact on the overall sentence for the most serious crime. In Boakye (ibid) the Court addressed an argument focusing upon the impact of custodial sentences upon the families of the defendant, and in particular upon children. Hughes LJ observed (at para. 32) that the position of children in a family might be a relevant consideration in sentencing but that:
“it will be rare that their interests could prevail against society’s plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so”
. The same principle applies here. The interests and concerns of the families of the defendants can be of little significance at the most serious levels of criminality.

The Principals

[19]Christopher Welsh junior, Christopher Welsh senior and Michael Shields were identified by the judge as the principals in the conspiracy: he assessed the appropriate sentences respectively for each as 25 years, 23 years and 22 years and, having allowed for their guilty pleas at the first reasonable opportunity, he passed sentence upon them of 16 years 8 months, 15 years 4 months and 14 years 8 months imprisonment. Openshaw J refused the first two men leave describing the sentences as deliberately severe but proportionate to the scale of offending and their leading role; Burton J refused Shields leave on the grounds that there was no basis for challenging the judge’s assessment of the hierarchy or the sentence imposed. Each renews his application.[20]The roles can be shortly outlined. Christopher Welsh junior, now aged 35, was the head of the organisation. He was able to source large quantities of high purity drugs from his father Christopher Welsh senior, Shields and others. He used some 43 unregistered pay-as-you-go mobile telephones during the course of the conspiracy. He was in regular contact with the couriers whom he employed to deliver drugs and with the conspirators at the Scottish end. He was seen with other leading figures. He went to meetings in Glasgow. He attended safe houses. He continued to direct operations when abroad in Spain, Greece and Egypt.[21]Welsh junior had seven previous appearances before the Court which included a conviction for possession with intent to supply cocaine and conspiracy to supply a Class C drug in 2005 for which he was sentenced to a total of 57 months imprisonment. A letter which he had written acknowledged the harm done and the judge noted the steps that he had taken in custody to improve himself.[22]His father, Christopher Welsh senior is 56 years of age and was at the head of the organisation working alongside Shields but subordinate to his son whom he supplied with large quantities of drugs. His address was used to store and mix drugs. He gave drugs hidden in gift bags to couriers. On 8 October 2012 Tynan gave him a bag which he took to his address. Police searched his address. The bag contained ½ kg. of cocaine. Police also recovered 5 kg. of heroin, packaging, gloves, tapes and scales. The street value of the drugs was over £1.3 million He had nine previous court appearances and in 2007 had been sentenced to 3 years’ imprisonment for two offences of being concerned in the supply of controlled drugs. His daughter’s letter showed the tragic consequences of drug dealing on innocent people; the judge also noted his medical condition.[23]Michael Shields (who is 46 years of age) was also at the head of the organisation with Christopher Welsh senior but subordinate to Christopher Welsh junior whom he supplied with large quantities of drugs. He met with other leading figures. He attended meetings in Glasgow. He attended safe houses. The judge concluded that he played a leading managerial role, close to but less significant than that of Welsh junior or senior, although five previous appearances with convictions for possession with intent to supply cannabis and supplying cocaine (leading to a total a sentence of 5½ years imprisonment) aggravated his position. The judge noted that he, also, had made progress while in custody and assisted other prisoners having become a ‘listener’.[24]In this court, Mr Francis Fitzgibbon Q.C. for Welsh junior argued that although the case fell into the 20+ years category, there were no features of sophistication or business acumen such as to justify a sentence before discount of 25 years. The case was nowhere near the type of case involving importation of large quantities of drug. Furthermore, the principals were jointly responsible and should not have received different sentences. Counsel for the other two principals adopted the argument that the starting point was too high; for Welsh senior, it was also submitted that the sentence passed on him should have been the same as that passed on Shields.[25]We agree with the single judges who considered these applications. This was criminality on a monumental scale and it is beyond argument that the rubric in the guideline issued by the Sentencing Council justified a starting point well in excess of 20 years. This is not least because of the quantity of drugs involved together with the repeated nature of the offending (which continued after the police had demonstrated their interest in the operation by intercepting and seizing drugs) and the enormous sums of money potentially involved. Indeed, had the judge lifted the sentences before discount for guilty pleas by a further period of a year or so specifically to reflect the relevant previous convictions, that would not have made the sentences wrong in principle or manifestly excessive. As for the differentiation between the three men, that judgment was entirely within the proper exercise of the judge’s discretion. Although we would have extended time to appeal where appropriate, these applications for permission to appeal are all refused.

Leading roles below the principals

[26]The judge placed the appellants Christopher Amos and James Edmonds at the next level of culpability below that of the principal organisers. He concluded that both played leading roles in the conspiracy describing Amos as the trusted lieutenant of Welsh junior and Edmonds as his right hand man. Given the argument advanced that the judge failed to draw a sufficient distinction between these offenders and the principals, we outline the facts in a little more detail.[27]Amos was involved throughout the period of the conspiracy. He was arrested on 18 October 2012. He lived at 16 Vesuvius Street Kirkdale, an address that featured on numerous dates during the conspiracy and where meetings related to the conspiracy took place. He made a total of 14 trips to Glasgow both as a courier and for other business connected with the conspiracy that the judge concluded was in a directing role. He allowed his premises to be used for the storage and mixing of drugs and was responsible for moving drugs around the vicinity and collecting bags from two safe houses.[28]On 5 November 2011 he was stopped in a Renault motor vehicle registered to James Welsh and was arrested in possession of a mixer, scales, a mould for a drugs press, gloves and adulterant all found in the boot of the vehicle. No action was taken at the time but subsequent examination revealed traces of cocaine on the mixer, scales and mould. The experience of arrest did not deter his subsequent substantial participation in the conspiracy.[29]On 18 April 2012, David McIver attended Amos’s address at Vesuvius Street where he met Welsh junior and an exchange of bags took place. McIver was later arrested and found to be in possession of 3.25 kg. of heroin, 1.25 kg. of cocaine and £90,390 in cash. Undeterred by this seizure, Amos was present at a meeting at Vesuvius Street on 30 May 2012 between Welsh junior and Fletcher, before the latter departed for Glasgow with a bag that the prosecution contended contained drugs. Fletcher met both men at the same address on his return. Fletcher also went to Vesuvius Street on 1 June 2012 after handing a package to another conspirator that was found to contain 1 kg. of cocaine. There was other evidence of Amos performing acts relating to the conspiracy on 12 June, 15 June, 20 June, 2 August, 12 September, 20 September and 26 September 2012.[30]Following his arrest in October 2012, his home address was searched; 3 kg. of adulterant, 64 gms of heroin, and a drugs press that tested positive for heroin were found. If mixed with heroin the adulterant would have a potential street value of £240,000. A search of two addresses that Amos had been observed attending on a number of occasions revealed: at 2B Kirk Street (the home of Woods), 5.75 kg of heroin and 1.1 kg. of cocaine and, at Joshua Close, 2 kg. of adulterant with a potential street value of £180,000 if mixed with heroin.[31]Amos was 28 at the time of sentence, of effective good character, a family man with a fiancé and children, and his parents and grandmother asked for leniency in the light of his progress in prison in turning his life around after an addiction to drugs that he said in interview led to his involvement. As against that the judge was satisfied that he was a leading player throughout the conspiracy giving instructions to others as well as receiving them from those above him. He rejected the account that the drugs found at his home were only there for his personal use.[32]Likewise, Edmonds was a leading player in the conspiracy and extremely close to Welsh junior. He regularly changed mobile phones used in connection with offending and when Welsh was abroad, other conspirators would contact Edmonds in his absence. He made a number of visits to Glasgow: on 18 January he went there with Amos and James Welsh; he was there again in February and on 7 March was again in Glasgow with Amos, Welsh Junior and James Welsh. He visited the home address of couriers and other conspirators and on 10 April he went to the home address of Welsh senior with Welsh junior and McIver, before travelling once more to Glasgow with Welsh junior.[33]On 18 April Edmonds had meetings with Welsh junior and McIver when bags were exchanged. McIver was arrested later that day and 2.25 kg. of heroin and 1.25 kg. of cocaine were seized.[34]On 24 April Clotworthy was arrested at Carlisle railway station with 1½ kg. of heroin and 15 kg. of adulterants; Edmonds was texting him that day, clearly connecting him to that particular intended distribution. The judge further noted evidence of a number of occasions of visiting couriers and other conspirators including Tynan and Woods, in connection with drug deliveries in May, June and September. On the 8 October Edmonds visited Tynan’s address at Abingdon Road with Welsh junior with a particular bag that Tynan gave to Welsh senior later that day; Welsh senior took it to a safe house where 5 kg. of heroin and nine empty packets used to wrap one kg. blocks of heroin were recovered.[35]Edmonds was aged 33 at the time of sentence and although he had previous convictions none was drug related or treated as aggravating this offence and he had no previous experience of custody. The judge took into account a moving letter written by his mother.[36]For both Amos and Edmonds the judge indicated that the starting point after a trial would have been 20 years and with full discount for a plea of guilty this lead to a sentence of 13 years 4 months. If the sentences on Welsh Junior and the other principals are not to be reduced, the sole point taken is that the difference in starting point between 25, 23 and 22 years respectively was insufficient to distinguish between the distinct and lesser roles of these appellants in the conspiracy. Further, each of the principal conspirators had significantly aggravating previous convictions for supply of class A drugs, a factor absent from the cases of both these appellants.[37]Our conclusions on the appropriate sentences for leading roles in a conspiracy of this scale have already been noted above. Both these appellants were well placed to understand the scale and effect of the criminal activity they were involved with and remained undeterred throughout. If the indicative quantity had been a single supply of 5 kg. of class A drugs a starting point after trial of 12 years would have been appropriate; the judge scaled up this starting point having regard to the 23 kg. actually recovered and the reasonable estimate of at least 100 kg. distributed during the course of this conspiracy. We cannot accept the submission that a starting point of 20 years was manifestly excessive. As we have explained, the judge accurately noted that for offending of this scale to be fitted into the range between 16 and 30 years there is bound to be some bunching in distinguishing between the level of culpability of leading players.[38]The best point made to us is that there was insufficient discount having regard to the absence of aggravating previous convictions by contrast with the principals. However, despite the absence of previous relevant convictions and the presence of personal mitigation, we cannot conclude that in the last analysis the sentences were either wrong in principle or manifestly excessive for the following reasons:- i) In our view the principal characters were fortunate not to have their starting points increased by reference to their convictions. This is not a case where that factor leads to a justified sense of grievance or any injustice. Significant distinctions have nevertheless been made between the classes of offenders and those more seriously involved have received sentences of two to five years longer. ii) The trial judge took considerable care in finding the different levels of culpability between the leading players below the principals and to interfere with these sentences on this ground would lead to an inappropriate distortion in what we otherwise consider to be appropriate structure and sentences. iii) Any reduction that we might otherwise have been minded to make on this ground would not have been for a significant period and would thus fall to be disregarded as not justifying interference by this court where a starting point of 20 years was otherwise appropriate: in short, these sentences are neither wrong in principle nor manifestly excessive.

Substantial roles in Liverpool

[39]Brian Woods is the uncle of Welsh junior. He was aged 51 at the time of sentence and had nine previous convictions but none that were found to aggravate this offending. He lived at 2B Kirk Street and his role was to allow his flat to be used for storing drugs and facilitate meetings between the conspirators. The judge referred to four occasions between 12 June and 2 August 2012 that concerned Tynan and his premises in collection of drugs with a view to delivery in Glasgow.[40]The judge sentenced him in accordance with his basis of plea that he allowed his premises to be used for storage in return for payment but concluded that his role was a significant one and involved the retention circulation and storage of a vast amount of controlled drugs. He was arrested on 18 October and a search of his premises revealed 5.7 kg. of heroin and 1.1 kg. of cocaine with a potential street value of £1.1 million.[41]The judge identified a starting point for Woods after trial of 18 years, scaling up the starting point of 10 years for supply of an indicative amount of 5 kg; giving full credit for a plea, a sentence of 12 years was imposed.[42]The judge also took an 18 year starting point for Steven Tynan and David McIver. Tynan was 37 at the time of sentence and was lightly convicted with no previous experience of a custodial sentence. His role was again assessed to be a significant one in the conspiracy and concerned storage of drugs, adulterants and cash. He lived at Abingdon Road Liverpool where a number of significant meetings of conspirators had taken place as has already been noted. In his sentencing remarks the judge identified seven occasions between 18 April and 16 October when Tynan was either seen to deliver bags to fellow conspirators or present when bags were taken to and from his home address.[43]On the last of these occasions on 16 October, one of those to whom Tynan had handed a bag travelled to Glasgow and when the home of the ultimate recipient was searched 1.1 kg. of heroin and 3 kg. of adulterant were recovered with a potential street value of £203,000 along with £16,120 in cash.[44]When Tynan was arrested on 18 October, 50 kg. of adulterant were recovered: if mixed with class A drugs, it would generate a street value of drugs of approximately £2.8 million; £2,000 in cash was also seized. An address at Victoria Settlement that Tynan had visited in July 2012 was found to contain 2.76 kg. of heroin and 446 gms. of cocaine with a total street value of £492,000.[45]David McIver was also assessed to have played a significant role in this conspiracy between December 2011 and his arrest on 18 April 2012 has already been noted. He was 58 and of previous good character. Telephone analysis revealed that he had used at least six mobile phones for the purposes of the conspiracy revealing an understanding of tactics used by criminal groups to avoid surveillance of their activities. He was in regular contact with leading members of the conspiracy including Welsh Junior, Welsh Senior, Shields, Amos and Edmonds as well as other significant figures such as Tynan, Woods, and Riley and the couriers Clotworthy, Breen and Jackson.[46]The judge identified a number of occasions in January and February 2012 (when messages were sent to other conspirators) to support the conclusion that McIver played a significant role and was trusted by others to store and handle large amounts of cash and drugs and to keep close contact with couriers.[47]On 9 March 2012 McIver was in constant touch with Breen who was arrested that day in possession of heroin and cocaine with a street value of £162,000 but also 20 kg. of adulterant that could result in drugs with a street value in the range of £1.4 to £2 million. Undeterred by this arrest, McIver was with father and son Welsh and Edmonds a month later on 11 April when premises used for the storage of drugs were visited and bags were seen to be brought out. On the 18 April he had met Welsh Junior and Edmonds at the home of Amos before going on to Tynan’s address. On his arrest, class A drugs with a street value of £775,000 were recovered along with adulterants and £90,390 in cash was recovered in his car or at his home.[48]Our conclusions on the appeals of this group of appellants follow from what we have said about the appeals of Amos and Edmonds. The judge’s rate of scaling up from the starting point was consistent with that used for the appellants who ranked higher in the scale of culpability. The two year distinctions made on account of role were reasonable and reflected a coherent sentencing structure even though the opportunity for any wider distinction was constricted because of the bunching feature noted by the judge. There is no basis for a submission that the distinction between these appellants and Amos and Edmonds was insufficient so as to make the sentences manifestly excessive; all of the comparators were either of good character or their bad character did not aggravate their offending.

Other significant roles in Liverpool

[49]Steven Wood was 31 at the time of sentence and lightly convicted with no previous experience of custody. He lived with the sister of Amos at a Liverpool address that featured in the conspiracy until the 28 July 2012 when a search warrant was executed and there was found 1.56 kg. of heroin, 917 gms of adulterants and a 10 ton press used to compress drugs and adulterants. The drugs had a street value of £180,000 and there was evidence that the press had been used to compress heroin. He was another trusted member of the conspiracy who had made 14 visits to Glasgow as a courier and, following a Newton hearing, the judge was satisfied that on the vast majority of occasions such occasions, he was delivering drugs of between one and two kg. per delivery. In addition, he had permitted his house to be used by others for the mixing and preparation of drugs. The judge identified evidence of a number of occasions when drugs were brought to his premises or by him to others and was satisfied that he was not a mere ‘gofer’, but played a significant role with knowledge of the conspiracy albeit for a shorter period than others. The starting point after trial would have been 15 years but giving full credit for his guilty plea the sentence was one of 10 years.[50]Christopher Riley was 43 at the time of sentence. He had no drug related convictions and had made progress on remand. He was assessed to be a significant and active member of the conspiracy between January 2012 and 17 October 2012 when he was in contact by mobile phone with Welsh junior, Shields, Amos, Edmonds; towards the end of this period he was in contact, almost daily, with Woods. The judge noted that he changed his phone following the arrest of McIver. His particular role was mixing or bashing of drugs at one location Victoria Settlement and his basis of plea that the quantities processed ranged between 20 and 30 kg. was accepted. £2,000 cash was recovered from his home address on arrest. The judge concluded that the role undertaken was a significant one and scaled up from the 10 year starting point to 16 years resulting in a sentence with full credit for a plea of 10 years and 8 months.[51]We cannot accept the submission that, even if the sentences on those more culpable than him were to be maintained, this sentence was manifestly excessive for his role in the conspiracy. The duration of his involvement, his persistence despite the arrests of others, and the senior members of the conspiracy that he was in contact with all amply justified the judge’s conclusions as to role and his place in the sentencing structure.[52]The judge’s starting point for Kevin O’Shea was 17 years and a sentence of 11 years and four months was imposed giving full credit for a plea. He was a courier who visited Scotland on 20 occasions on drugs related business; the judge assessed that he had delivered between 20 and 40 kg. of class A drugs. He was close to Welsh junior and had attended his wedding in Mexico. He was 28 at the time of sentence and, in his case, there was the aggravating factor of a conviction in March 2006 for possession of heroin with intent to supply for which he sentenced to three years imprisonment. For reasons explained by this court in Boakye (above) a worldly-wise courier who engages in the conspiracy on repeated occasions and for significant periods can be treated as playing a significant role. His appeal depends entirely on the outcome of those who ranked more senior to him and for the reasons already given, it is dismissed along with the other appeals.[53]Liam Clotworthy was a courier who travelled to Scotland on 18 occasions between September 2011 and April 2012 delivering drugs and collecting cash. He used no fewer than nine mobile phones in connection with this activity until his arrest on 24 April 2012 that terminated his involvement in the conspiracy. The judge took a staring point in his case of 16 years for his role as courier. The scale, persistence and nature of his activities entitled the judge to conclude that his was a significant rather than lesser role and the distinction with O’Shea was marked by a reduction of one year in the starting point. He was 30 years of age at sentence and had a previous conviction and a sentence of 30 months imprisonment for robbery that was not assessed to aggravate this offence.[54]The sentence imposed of 8 years and 4 months imprisonment was carefully calculated to reflect the fact that, on 13 July 2012, before he was charged with this conspiracy, he had been sentenced to a term of 6 years imprisonment for the possession with intent to supply arising from the arrest and seizure of drugs in April 2012. This sentence for a single act of possession with intent was before the full scale of his criminality was known about. In his case also, the judge properly structured the sentence for the relevant role and comparable culpability and the outcome was not wrong in principle or manifestly excessive and his appeal is also dismissed.[55]James Welsh was sentenced in accordance with his basis of a plea which was to the effect that he was recruited to act as a courier and was not a family member or relative of Christopher Welsh senior or junior. That basis of plea did not specify upon on how many occasions that Welsh acted as a courier or the extent of his involvement. The judge observed, however, that it could be proved, that he had travelled to Scotland on 8 occasions between January and July 2012: this assessment was not challenged. Thus, the judge concluded that he was “a trusted courier” who was “very close to many others up the chain and with whom [he] would frequently travel to Scotland”. Furthermore, whether or not a member of the family, he was sufficiently close to Christopher Welsh senior and junior that he was invited to attend the latter’s wedding in Mexico. He was 26 years of age when sentenced and had two prior convictions for simple possession of controlled drugs.[56]Noting that this would be his first custodial sentence, the judge assessed the appropriate sentence prior to discount as one of 12 years imprisonment which is at the upper end of the guideline for Category 1 (where the median quantity is 5 kg.). His plea of guilty resulted in the sentence being reduced to 8 years imprisonment. There is no basis upon which it can be said that his sentence was wrong in relation to any other defendant, whether playing leading role or otherwise.[57]Kenneth Fletcher travelled to Scotland on 15 occasions. Having first visited Glasgow in December 2011, on 25 July 2012, he was arrested upon his fifteenth trip at Carlisle railway station when he was in possession of just under 2 kg. of heroin. The judge recorded that upon occasions he attended meetings with Welsh junior and with Edmonds. When he was arrested the drugs in his possession had a street value of £280,000 with a purity of approximately 24%. He was sentenced upon the basis that he was a courier and to the Judge it was “apparent” that he was a “very trusted courier and close to many other conspirators”. Accordingly he played a “very significant part” within the conspiracy.[58]At the time of sentence, he was 51 years of age and in the past had received a short sentence of imprisonment. His previous convictions included simple possession of controlled drugs. He was sentenced to a term of imprisonment of 15 years reduced to 10 years in the light of his guilty plea. Given the extent of Fletcher’s role as a courier, the amount of drugs carried personally and the overall quantity of drugs supplied pursuant to the conspiracy, in our judgment, the judge was entitled to increase the starting point from that would which normally result for a offender playing a significance role in a category one offence. No arguable issue based upon disparity arises.[59]Kevin Jackson was sentenced upon his basis of plea which was that he was a courier between November 2011 and April 2012 and had undertaken these duties in order to satisfy a cash debt owed to another participant in the conspiracy. The basis of plea further recorded that Jackson received £1,000 for his work which he used to repay his council tax arrears. No claim was made as to the number of occasions upon which he acted as a courier but, in his sentencing remarks, the judge recorded that Jackson travelled to Scotland upon 8 occasions during which he met with others within the conspiracy including Welsh junior.[60]Jackson was 60 years of age as of date of sentence. He had a previous conviction of nearly 30 years vintage but the judge ignored this and treated him as a man of good character. He was sentenced upon the basis he was a courier but he accepted that Jackson was not as close to some of the other conspirators as certain other defendants were. The judge also accepted that Jackson departed the conspiracy voluntarily in April and there was no suggestion he held in his possession “dirty drugs” phones: not surprisingly in the light of the circumstances, the judge concluded that Jackson played a “significant role”.[61]Jackson was sentenced to 10 years imprisonment reduced to 6 years and 8 months to take account of the early plea. The starting point for this sentence was precisely that which appears in the Definitive Guidelines for an offender playing a significant role in a Category 1 offence. The judge was clearly entitled to take such a starting point in his case. The starting point for Jackson’s sentence was 15 years lower than that set out for Welsh junior. It was 5 years lower than that imposed upon Kenneth Fletcher who made 15 trips to Glasgow. The sentence was a proper one and is not unlawful by reason of disparity or otherwise.[62]Anthony Breen was sentenced upon the basis that he was a courier. He went to Glasgow on 18 occasions to deliver drugs and adulterants and to collect money. He did so frequently by train giving an appearance of respectability when, as it was said by the judge, “it was anything but”. He used at least 5 dirty phones and was, in the view of the judge, heavily involved and played a “very significant role” in September 2011 at the outset of the conspiracy until March 2012.[63]He had been arrested on 9 March 2012 at Preston railway station in possession of 1 kg. of heroin (with a value of £162,000) and 20 kg. of adulterants. When mixed together, the street value of the saleable result would have been between £1.4 – £2.0m. In relation to this specific quantity, he pleaded guilty to a supply offence and, on 12 June 2012, was sentenced to a period to 4 years imprisonment: the judge rightly concluded that, bearing in mind the seizure of the quantity of drugs in question, this was “a merciful sentence”: it was undeniably below that identified as appropriate in the guideline. Although he was in regular contact with Welsh junior and he was, so found the judge, “a close and trusted courier”, he was not charged upon that occasion with the wider conspiracy.[64]When he came to be sentenced for his role in the wider conspiracy, he was 47 years of age and, at that point, he had been in custody for 14 months and served the equivalent of a 28 month sentence which the judge recorded had to be reflected in the sentence which was then to be imposed. Based upon his participation, and his “very significant role” (involving quantities far in excess of category 1 of the definitive guidelines), the judge assessed an appropriate sentence for the offence as a term of 16 years imprisonment which, following discount for the early plea, was reduced to a sentence of 10 years and 8 months. It was further reduced, to a sentence of 8 years and 4 months, to take into account the portion of the sentence already served.[65]This sentence may be compared with that of O’Shea who made 20 trips to Scotland and was sentenced upon the basis of a 17 year starting point. The starting point was 9 years lower than that imposed upon Welsh Jnr. It was a perfectly proper sentence.[66]David Chambers (32 at the date of sentence) travelled to Scotland on just 2 occasions on 9th and 16th October 2012. The evidence suggests that he couriered 1.1 kg. of heroin and 3 kg. of adulterants. The value of the drugs was £203,000. On 26th October 2005 he had been sentenced to a period of 14 months imprisonment for the possession with intent to supply of Class A controlled drugs. The judge concluded that this aggravated the seriousness of his offence. The sentence imposed upon was one of 9 years imprisonment reduced to 6 years to take account of the guilty plea: it is entirely consistent with the guideline and the other sentences: this appeal is also dismissed.[67]Abraham Salim was sentenced in accordance with his written basis of plea. During the first half of 2012, he was working as a self-employed courier working lawfully; his services were advertised mainly by word of mouth from existing customers. On 20 June 2012, he agreed to take a parcel from Liverpool to Glasgow for a person he knew only as a Mr Fairhurst. By the time he took possession of the parcel, he realised that the contents were drugs but he asserted that he did not know the precise nature or class of the drugs. He was told that the details of the delivery address would be provided to him when he was approaching Glasgow and was to receive a fixed fee of £200 for the delivery. He had no financial interest in the drugs as his role was simply as a courier.[68]He also stated that he was told by the consignor that the parcel contained “wood” which he understood to be cannabis resin though he was aware that the description might not have been true and that there was a risk that the drugs might be Class A. He was arrested on the same day on the M6 near Lancaster. The parcel in fact contained 1 kg. of heroin and 2 kg. of paracetamol which was to be used as the adulterant. The drugs were valued at £140,000. The purity was between 25 and 28%.[69]The judge remarked that his basis of plea afforded him only limited mitigation; he was satisfied that Salim was not “a gullible man”. Nonetheless, the judge explained that he would be sentenced upon the basis of his limited involvement relating to 1 kilo of heroin and 2 kilos of adulterants in circumstances were the adulterants would have been used to bulk up the drugs in order to maximise profit.[70]Salim was then 34 years of age and in 2002 had received a sentence of 54 months imprisonment for conspiracy in respect of offences of dishonesty. Because of the different nature of the offending, the judge concluded that this did not aggravate the seriousness of the offence. He assessed the appropriate sentence to be 7½ years which was reduced to 5 years imprisonment to take account of the guilty plea. This sentence was at the very lowest level of sentences imposed, was within the range of sentences set out in the definitive guideline. It might be considered severe but it is neither wrong in principle nor manifestly excessive.

The Scottish Conspirators

[71]The defendant Feeley entered a plea on a written basis in which he accepted that he had been invested with a significant degree of trust and had acted as a “front of house” in Glasgow for those running the Scottish end of the conspiracy thereby limiting their exposure to the chances of detection. He also acknowledged his prolonged involvement in the conspiracy. He then contended (accepted by the judge for the purposes of sentencing) that he had handled 10 – 20 kg. of class A drugs.[72]It is clear from the facts presented to the court that Feeley was responsible for receiving drugs and adulterants couriered to him from Liverpool and in delivering cash to couriers to be returned to Liverpool. He was therefore intimately involved with the conspirators on both sides of the operation. It is also clear from the evidence that in accordance with his role he met regularly with the Liverpool and the Scottish conspirators including those operating at very senior level.[73]The judge correctly approached sentence on the basis that Feeley was “more than a courier”. He was very active throughout the conspiracy and thereby played a “very significant role”. He was involved between December 2011 and October 2012 during which 84 trips occurred between Liverpool and Scotland, albeit that is was not suggested that he was involved in receiving or paying for the drugs for each of the trips: other drugs retailers will also have been acquiring the product. The judge was, however, satisfied that he received “substantial quantities of drugs from Liverpool couriers, quantities far in excess of those envisaged in the guidelines”, albeit difficult to quantify the precise amount. Feeley’s significant role meant that “vast quantities of Class A drugs would ultimately end up on the streets in Scotland”. The judge concluded that Feeley went into the conspiracy with his eyes wide open and stayed in the conspiracy with his eyes remaining wide open for 10 months. It was accepted that he was “front of house” but not an organiser or a dealer. He was “worldly wise”.[74]Feeley was 28 years of age when sentenced with no prior relevant convictions: supporting references were particularly impressive. The judge concluded, however, a substantial custodial sentence was required to reflect the extent of his involvement within the conspiracy. The judge correctly described the role of Feeley as significant for the purpose of the definitive guideline and identified the appropriate sentence as 17 years (comparable to the starting point of O’Shea who travelled from Liverpool to Glasgow as a courier on 20 occasions) but 1 year less than the 18 year sentence imposed upon Tynan who played a significant role at the Liverpool end of the conspiracy. Taking account of the guilty plea, the sentence was reduced to 11 years and 4 months[75]On his behalf, Mr Tyrone Smith Q.C. argued that there is a disparity between the sentencing imposed upon Feeley and that imposed upon Thomas Wallace. Wallace was a lead purchaser in Glasgow buying wholesale in order to sell on as a commercial dealer. The judge was unable precisely to assess how much had passed through his particular hands but concluded that it was “substantial” and significantly more than the quantities envisaged in the guidelines. He was aged 45 as of the date of sentence and only lightly convicted. He was sentenced to 19 years imprisonment reduced to take account of his guilty plea to 12 years and 8 months. No criticism can be made of the judge in this regard: he was best placed to judge the relative positions of Feeley in relation to the others within the conspiracy and, in particular, that his position was only slightly less serious than that of Wallace bearing in mind the role and responsibilities he undertook.[76]Fully recognising that the recipient of drugs in Glasgow is in a different position to those distributing more widely from Liverpool, responsible only for the quantity actually received, notwithstanding the positive aspects of his character, the extent of this criminality (and the ‘front of house’ role) demonstrates that the sentence imposed which was neither wrong in principle nor manifestly excessive.[77]Alexander Caldwell was a conspirator based in Scotland. By the time the judge came to the sentence Caldwell he was the 29th defendant to be sentenced by the court. In consequence the judge clearly had in mind the position of Caldwell relative to that of others within the conspiracy.[78]Caldwell had been in regular contact with Christopher Welsh Jnr throughout the operation of the conspiracy. The judge found that Caldwell’s involvement was similar to that of Feeley. Caldwell did not initially make any detailed admissions and a Newton hearing was held in consequence of which various adverse findings were made against him. The judge concluded that the role of Caldwell was akin to that played by Feeley, less than the role played by Wallace but more than the roles played by couriers. The judge also conducted a comparative exercise of Feeley as against Caldwell and concluded that the involvement of Caldwell was for a slightly shorter duration than that of Feeley. Caldwell was 24 years of age at the date of sentence. The judge imposed a sentence of 15 years imprisonment reduced to 11 years and 3 months giving an appropriate (25%) reduction for the guilty plea and the Newton hearing. The sentence was entirely appropriate.

Conclusion

[79]This sentencing exercise called for a detailed consideration both of the facts and the approach to sentencing in this area: that is exactly what it received. Although we would have been prepared to extend time to those who have sought to renew applications for leave to appeal had there been any merit in the underlying appeals, there is not. In the circumstances, the applications for extensions of time, for leave to appeal and the appeals are all dismissed.

Cited in 11 later judgments

and 2 more of the most senior