Dang & Ors v R [2014] EWCA Crim 348

Case Nos: 201201548 B5, 201201549 B5, 201202601 B5,201202962 B5, 201203141 B5, 201203143 B5,201203368 B5, 201300438 B5, 201301695 B5[2014] EWCA Crim 348
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
THE CENTRAL CRIMINAL COURT (His Honour Judge Hone QC)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 07/03/2014
Before
LORD JUSTICE PITCHFORDMR JUSTICE BURTONMRS JUSTICE PATTERSON DBE
Between
(1) Manh Toan DangAppellants(2) Hung Tuan Dang (3) Nhien Van Dang (4) Ngoe Tien Ly (5) Hai Ban Tran (6) Van Quan Dang (7) Tuan Van Le (8) Freddie Ross Johnson and (9) Thuong TuAppellantReginaRespondent
P Griffiths QC and MA Fullerton (instructed by Harrow Solicitors) for 1 st AppellantS Kivdeh (instructed by Eshaghian & Co Solicitors) for 2 nd AppellantA Orchard QC (instructed by Abbey Solicitors) for 3 rd AppellantI McLoughlin (instructed by SBG Solicitors) for 4 th AppellantJ Sidhu QC (instructed by Lloyds PR Solicitors) for 5 th AppellantK Brimelow QC (instructed by EBR Attridge Solicitors) for 6 th AppellantH Brown (instructed by EBR Attridge Solicitors) for 7 th AppellantC Conway (instructed by ZMS Solicitors) for 8 th AppellantJ Doyle (instructed by Creed Lane Law Group Solicitors) for 9 th AppellantH Davies QC and B Jung (instructed by CPS) for RespondentHearing Hearing date: 13 February 2014
JudgmentLord Justice Pitchford :Introduction
[1]There is attached to this judgment an Appendix in which are identified the names of the applicants and appellants, the convictions and sentences in respect of which they make application for leave to appeal and/or they appeal against sentence. Also listed are the dates of relevant pleas of guilty and verdicts of guilt, and the disposal of counts on which verdicts were not required. Manh Toan Dang, Hung Tuan Dang and Van Quan Dang seek leave to appeal against conviction following refusal by the single judge, Foskett J. Freddie Ross Johnson seeks leave to appeal against conviction following refusal by the single judge, Simon J. All the appellants appeal against sentence with the leave either of Foskett J or of Simon J. For completeness we record that Shaun Byrne’s application for leave to appeal against conviction and his appeal with leave against sentence have been adjourned. We wish to express our thanks to His Honour Judge (“HHJ”) Hone QC, the trial and sentencing judge, and to Foskett J and Simon J, for the care that they have taken to express their reasons for the decisions they have respectively made. Henceforward we shall for convenience refer to each of the applicants or appellants as “the appellant”. The indictment[2]At the Central Criminal Court the appellants faced a consolidated indictment containing five counts. Count 1 charged them that, contrary to section 1(1) of the Criminal Law Act 1977, between 1 January 2006 and 31 December 2010 they conspired together and with other persons “to be concerned in the production of a controlled drug, namely Cannabis, by another in contravention of section 4(2)(b) of the Misuse of Drugs Act 1971”. In count 2 they were charged that, contrary to section 1(1) of the Criminal Law Act 1971, between 1 January 2006 and 31 December 2010, they conspired together and with other persons “to produce a controlled drug, namely Cannabis, in contravention of section 4(2)(a) of the Misuse of Drugs Act 1971”. Count 3 charged Van Quan Dang, Manh Toan Dang and Hung Tuan Dang that on 6 June 2010 they falsely imprisoned Nicole Voak and Joshua Andrew and detained them against their will. Count 4 charged Van Quan Dang, Manh Toan Dang and Hung Tuan Dang that on 6 June 2010 without lawful excuse they damaged an Audi Estate motor vehicle belonging to Joshua Andrew contrary to section 1(1) of the Criminal Damage Act 1971. In count 5 Nhien Van Dang was charged alone with concealing criminal property contrary to section 327(1) of the Proceeds of Crime Act 2002 (see the Appendix below). The convictions[3]On 14 February 2012 the jury returned verdicts of guilty upon counts 1 – 4 in the cases of Manh Toan Dang and Hung Tuan Dang, but were unable to reach verdicts in the case of Van Quan Dang. On 25 April 2012 Van Quan Dang changed his pleas to guilty to counts 1, 3 and 4. Count 2 was ordered to lie on the file. The jury returned a verdict of not guilty upon count 2 in the case of Freddie Ross Johnson. The jury could not agree upon count 1 and a re-trial was ordered. On 20 December 2012 (in Johnson’s case following his re-trial) the jury returned verdicts of guilty upon count 1 in the cases of Shaun Byrne, Freddie Ross Johnson and Thuong Tu. The prosecution case[4]The prosecution alleged that the defendants, twenty four in all, were engaged in a conspiracy to supply hydroponic and other products and equipment for the purpose of assisting others to grow cannabis plants and, by that means, to be concerned in the production of cannabis (count 1); secondly, that they conspired themselves to produce cannabis (count 2). At the heart of the conspiracy were the Dangs, a Vietnamese family based in Kent. The principal conspirators were four brothers, Van Quan Dang (aged 39), Nhien Van Dang (aged 30), Manh Toan Dang (aged 28) and Hung Tuan Dang (aged 25). That the conspiracies were in place was established by the pleas of guilty of Nhien Van Dang on 4 November 2011 and Hai Ban Tran (aged 34) on 8 November 2011. The issue was whether the other defendants were members of either or both of the conspiracies.[5]The business of acquiring and distributing equipment and supplies for the production of cannabis was conducted through a number of Dang companies, chief of which were Eurosales Limited, Eurovent Limited, Eurobright Limited, Dynamic Imports Limited and Future Tech Limited. The business was national and international in its reach. It controlled warehouses and shops for wholesale and retail supply and factories making bespoke equipment for the purpose of supplying cannabis farms throughout the United Kingdom and Ireland (count 1). In addition, the business leased and staffed its own farm premises for the cultivation and harvesting of cannabis (count 2). The jury was provided with evidence relating, in all, to some 56 cannabis production farms concerned in the count 1 or count 2 conspiracies.[6]Manh Toan Dang(1) and Nhien Van Dang (3) took leading roles in the business. Manh Toan Dang was a director of Future Tech; formerly he was a director of Eurovent. Nhien Van Dang’s primary responsibility was the creation and running of the cannabis farms and the recruitment of staff lower down the chain of command. Van Quan Dang (6) was formerly a director of Eurosales. At the time of his arrest he was Future Tech’s international sales manager. Manh Toan Dang and Van Quan Dang were chiefly responsible for sourcing products overseas for onward supply in the United Kingdom. Hung Tuan Dang(2) was the link between the purchase and distribution of equipment. He also handled leases, managed distribution and had a close association with a number of farms. Hai Ban Tran (5) was a director of Dynamic Imports, incorporated on 11 March 2009. His main role was delivery. Before he became a director of Dynamic Imports he ran a courier business, Nationwide Delivery, which served both legitimate and the conspirators’ purposes. Ngoe Tien Ly (4) was also a director of Dynamic Imports. Tuan Van Le (7) was a director of London Nails Limited from May 2008 and Hydroponics 4U from August 2008. His role included manufacture and supply of acoustic ventilation boxes for use in cannabis production. Freddie Ross Johnson (8) joined forces with the Dangs in or about March 2007. Van Quan Dang, Manh Toan Dang and Johnson were directors of Eurosales UK which later became Eurovent. Johnson had contacts in China for the sourcing of hydroponic and other equipment for supply to the UK. Johnson fell out with the Dangs in about October 2008. Eurobright traded in ventilation equipment used in cannabis cultivation. Thuong Tu (9) was employed at Wendy’s Garden Centre in Manchester where he was implicated in the storage and sale of equipment for cannabis production.[7]Counts 3 and 4 concerned the events of 2 – 6 June 2010 during which period the principal conspirators became concerned that they were being followed and watched by competitors. They were in fact under police surveillance and an unintended confrontation with an undercover woman police officer took place on 3 June 2010. On 6 June Paul Hanna was driving his friend’s Audi A4 estate in Day’s Lane, Sidcup, when he happened to stop at the entrance to a house-building site to read a text message. The site was associated with one or more of the conspirators. Another Audi vehicle driven by Hung Tuan Dang pulled up. Mr Hanna felt intimidated by Mr Dang’s manner and he drove off at speed, followed by the Audi. After about 15 minutes, thinking that he had evaded the following Audi, he was able to return the Audi A4 to its owner, Joshua Andrew. He informed Mr Andrew and his girlfriend, Nicole Voak, what had just taken place. They dropped Mr Hanna at his home at 253 Day’s Lane and continued on their way. They were then followed by a grey BMW being driven erratically. The car overtook and pulled sharply to its nearside effectively trapping the Audi. Two Chinese looking males got out of the BMW and came towards them shouting abuse and challenging them to get out of the car. At least one male attacked the Audi’s windows and body with a baseball bat. There were three men in all. Mr Andrew was able to reverse about 6 feet before driving off. So concerned was Mr Andrew at the prospect of further incidents that he sold the Audi car on the following day without first having the damage repaired.[8]Just before midnight a silver Audi occupied by Hung Tuan Dang (2), Van Quan Dang (6), Manh Toan Dang (1) and a fourth man was stopped in the area by police. Two baseball bats were found in the Audi, one of them between Manh Toan Dang’s feet in the well of the rear offside passenger seat. The key to Manh Toan Dang’s grey BMW was found in his pocket. In evidence Hung Tuan Dang accepted that at about 10.50pm he had called his brothers to say that a red Audi was acting suspiciously in the area. His brothers left a family party and went to Day’s Lane where the men met up. They denied that they were the men in the grey BMW who had detained and attacked the Audi. By his pleas of guilty before his re-trial Van Quan Dang acknowledged his participation in the attack on Mr Andrew and Ms Voak. Appeal against conviction[9]Manh Toan Dang, Hung Tuan Dang, Van Quan Dang and Freddie Ross Johnson all submit that count 1 of the indictment was bad in law.[10]Manh Toan Dang and Van Quan Dang challenge their convictions upon counts 3 and 4. They argue that counts 3 and 4 should have been severed from the indictment; that the identification evidence was flawed; and that on the evidence the jury could not properly conclude that false imprisonment had taken place. Manh Toan Dang further contends that the judge’s directions to the jury upon count 3 were inadequate in law. Count 1 Statutory provisions[11]Section 4 of the Misuse of Drugs Act 1971 provides:
“Restriction of production and supply of controlled drugs (1) Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person - (a) to produce a controlled drug; or (b) to supply or offer to supply a controlled drug to another. (2) Subject to section 28 of this Act, it is an offence for a person - (a) to produce a controlled drug in contravention of subsection (1) above; or (b) to be concerned in the production of such a drug in contravention of that subsection by another.” (a) to produce a controlled drug; or (b) to supply or offer to supply a controlled drug to another. (a) to produce a controlled drug in contravention of subsection (1) above; or (b) to be concerned in the production of such a drug in contravention of that subsection by another.”
[12]Section 1 of the Criminal Law Act 1977 provides: “The offence of conspiracy(1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either – (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) above unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.” (a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or (b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible, he is guilty of conspiracy to commit the offence or offences in question.[13]In his directions of law to the jury [transcript page 25G] the trial judge explained that count 1 alleged a conspiracy to be concerned in the production of a controlled drug by another rather than (as in count 2) a conspiracy to produce cannabis by or on behalf of the conspirators themselves. The prosecution case was that equipment for the production of cannabis was imported, manufactured and distributed to cannabis producers through companies under the control of the defendants. The judge provided a written ‘steps to verdict’; it defined the essential parts of the count 1 offence as follows:
“(1) Was there a conspiracy to be concerned in the production of cannabis by another? This requires the prosecution to prove that two or more persons agreed to a course of conduct such that if it were carried out as intended, one or more parties to the agreement would necessarily commit the offence of being concerned in the production of cannabis by another. On the facts of this case the prosecution must prove that the defendant whose case you are considering supplied or intended to supply equipment to another person or persons, but not a party to the conspiracy, knowing or intending that it would be used by that other person to produce cannabis and the particular defendant agreed to this. If the answer to this question is no, then the defendant whose case you are considering must be found not guilty. If you are satisfied so that you are sure that the answer to the question is yes, then go on to consider the next question. (2) Was the defendant whose case you are considering party to the conspiracy? A person is a party to the conspiracy if he (i) agrees with one or more of the parties to the conspiracy to a course of conduct that necessarily involves the commission by one or more of such parties of the offences of being concerned in the production of cannabis by another and (ii) intended to play and did play some part in the agreed course of conduct in furtherance of the criminal purpose of the production of cannabis by another person other than the conspirators which the agreed course of conduct was intended to achieve. If you are not sure on this point, the defendant whose case you are considering must be found not guilty. If you are sure, you must go on to consider the third question. (3) Did the defendant whose case you are considering have the necessary intention to commit the offence? You could not convict any of the defendants on count 1 unless you are sure that the defendant whose case you are considering became a party to the conspiracy and, at the time of joining the conspiracy, he had the intention that all or some of the products and equipment sold should and would be used for the production of cannabis by another. It is important to emphasise this specific intent: if products and equipment were imported and sold but only with the general knowledge that they could be used for cannabis production, as admitted for example by Manh Toan Dang and Freddie Ross Johnson, that would not be sufficient. There has in each defendant’s case to be a specific intention that the production of cannabis by another should and would take place...If you are not sure that the defendant whose case you are considering had that specific intention, then that defendant must be found not guilty of conspiracy to be concerned in the production of cannabis by another.” [Emphasis added]
[14]Mr Kivdeh and Ms Brimelow QC made submissions to the trial judge that count 1 did not disclose an offence contrary to section 1 of the Criminal Law Act 1977. They have made the same submissions to this court on behalf of those who renew their applications for leave to appeal against conviction. It is submitted that the prosecution relied, as the trial judge instructed the jury, upon the importing and selling of hydroponic and other equipment. That was, they submitted, ‘the course of conduct’ on which the prosecution relied for the purpose of section 1(1) of the 1977 Act. That course of conduct did not “necessarily amount to” or “involve the commission” of any offence within the meaning of section 1(1)(a). Accordingly, the conspiracy pleaded by the prosecution in count 1 could not amount to an offence contrary to section 1(1) of the 1977 Act. The appellants assert that a circumstance or fact of which the defendant must be aware for the purpose of section 1(2) is that the principal offender will produce cannabis with the equipment sold by the conspirators. It is contended that since the principal offender was not himself a conspirator the appellants cannot have known whether he intended to produce cannabis or not. Put another way (as Ms Brimelow QC argued) the harm or consequence contemplated by the agreement is too remote from the agreement to be a criminal conspiracy within the meaning of the section. The defendants agreed to sell equipment. They did not care whether it was used to produce cannabis but contemplated that, at least in some cases, it would be. Their agreement was not to embark upon a course of conduct that necessarily would amount to or involve the commission of an offence under section 4(2)(b) of the Misuse of Drugs Act 1971.[15]A similar factual situation arose in Kenning [2008] EWCA Crim 1534, [2008] 2 Cr App R 32. The appellants were partners in a business that sold hydroponic equipment, cannabis seeds and cannabis related literature. Items purchased from the business were used to grow cannabis. The appellants were charged with(i) conspiracy to aid and abet the production of a controlled drug and(ii) conspiracy to counsel the production of a controlled drug contrary to section 1 of the 1977 Act. The defence argued that section 1 did not embrace an agreement to aid and abet an offence; the section required an agreement to pursue a course of conduct that would itself, if completed, amount to the commission of a criminal offence. The court (Lord Phillips CJ, Dobbs and Underhill JJ) observed, at paragraph 16 of the judgment of the court, that there could be no conviction for aiding and abetting, counselling or procuring an offence unless the actus reus of the substantive offence is shown to have occurred. Lord Phillips CJ said, at paragraph 18:
“18. The course of conduct to which the would-be aiders and abettors agree will, ex hypothesi, involve their performing acts that are no more than necessary to the offence intended to be committed by the primary offender. If they do all those acts, they will not amount to an offence unless the primary offender commits the primary offence. There can be no certainty that he will do so. Thus, even if the aiders and abettors do all that they agree to do, their course of conduct will not necessarily amount to the commission of an offence. This result is not surprising. It would be odd if it was an offence to conspire to aid and abet, although no offence to attempt to do so.”
At paragraph 21 the court endorsed the conclusion of the court in Hollinshead (below) that an agreement to aid and abet, counsel or procure an offence is not in law capable of constituting a criminal conspiracy under section 1(1) of the 1977 Act.[16]In Hollinshead and others [1985] AC 975 (HL) the respondents supplied a device whose sole purpose was to reverse the counter on an electricity meter for the purpose of depriving the supplier of an accurate record of electricity consumed. They were charged in count 1 with conspiracy to aid and abet persons unknown “by deception dishonestly to induce an electricity board to wait for or forgo payment for electricity supplied”. In count 2 they were charged with conspiracy to defraud “one or more electricity boards by the manufacture and/or sale of devices to alter electricity meters”. The trial judge ruled that count 1 should lie on the file and ruled against a defence submission that count 2 did not disclose an offence. The respondents thereupon pleaded guilty to count 2 and appealed against conviction to the Court of Appeal. The Court of Appeal allowed the appeals, holding that there could not be a statutory conspiracy to aid and abet an offence (in so doing the Court approved the similar view of Professor JC Smith - see now, Smith and Hogan’s Criminal Law 13th edition at pages 437 - 438); and the unlawful consequence contemplated in count 2 was too remote from the agreement to constitute a conspiracy to defraud. The House of Lords held that it was not necessary in order to secure a conviction for conspiracy to defraud to aver and prove an agreement by the respondents themselves to use the devices fraudulently. It was sufficient if the agreement proved was to put in circulation boxes whose sole purpose was to defraud electricity boards. The House of Lords did not resolve the question whether the Court of Appeal had been correct to hold that there was no offence of conspiracy to aid and abet an offence.[17]The appellants submit that the conclusion reached by the Court of Appeal in Kenning and Hollinshead, by a parity of reasoning,provides support for their present argument. They point out that in order for a defendant to “be concerned in” the production of cannabis the production of cannabis must take place. If the cannabis producing equipment is sold but cannabis is not cultivated with it there can be neither an offence of aiding and abetting, nor an offence of being concerned in, the production of cannabis. We see the force of this argument and we grant leave to pursue it. However, we do not agree that inlaw being concerned in the unlawful production of cannabis, contrary to section 4(2)(b) of the 1971 Act, is the same thing as aiding and abetting its production contrary to common law. “Being concerned in” an activity is a broad concept. In Nguyen (Khin Quoc) [2010] EWCA Crim 2658 the defendant was convicted of being concerned in the production of cannabis. The prosecution case was that he was selling hydroponic equipment from his shop. Subsequent police enquiries revealed that his equipment had been used by some of his customers in the production of cannabis. The trial

judge directed the jury as follows:

“Count Two: Concerned in the production of cannabis This count also concerns only Mr Nguyen. It is quite different from count one. The evidence is different. The law is different. You must consider them separately. The prosecution say that Mr Nguyen was concerned in the production of cannabis. They say that until the 26 September 2006 he ran his shop, Forever Green, knowing that he was supplying equipment for the production of cannabis. Mr Nguyen denies that this was the case. The questions you must answer are: 1. Was cannabis produced by the customers of Forever Green using equipment bought from the shop? You must be sure that it was. If you are not sure then that is the end of the matter and Mr Nguyen is not guilty of count two. If you are sure, go on to consider: 2. Was there an identifiable participation in the production of cannabis by Mr Nguyen and did he intend to participate. If you are sure that Mr Nguyen sold items in the shop knowing that they were to be used in the production of cannabis AND intending that they should be then there may be a deliberate identifiable participation by him in the production of cannabis. That is a matter for you to decide. But nothing less than that will do. It is not a question of whether the items could be used to grow cannabis, or whether Mr Nguyen suspected that they were being used for the production of cannabis. It is not a matter of whether Mr Nguyen gave the matter any thought or should have given the matter any thought. If you are sure that the answer to both questions is yes then he is guilty. If you are not sure then he is not guilty.”
This court (Hooper LJ, Butterfield and Parker JJ) held that the judge’s direction to the jury was accurate in law. The act of being concerned could take place before or after the production. Section 4(2)(b) of the 1971 Act did not require proof of involvement in any particular process of production. The questions you must answer are: Conclusion

The questions you must answer are:

[18]We agree that a mere agreement to sell equipment, one of whose uses may be unlawful, cannot amount to a statutory conspiracy under section 1 of the Criminal Law Act 1977. However, that was not the offence left to the jury by the trial judge. The judge expressly distinguished such an agreement from that charged in count 1. There is, we think, a critical distinction to be made between the agreement and the substantive offence, contrary to section 4(2)(b), of being concerned. To establish the substantive offence the prosecution must prove that cannabis was produced and that the defendant was concerned in its production. To establish a conspiracy to commit the substantive offence the prosecution must prove an agreement that cannabis will be produced by another with the conspirators’ assistance. The offence charged was the making of the agreement to be concerned in the production of cannabis by others. If the agreement was carried into effect (in other words if, as in Nguyen, cannabis was produced by the use of the equipment sold with that intention and purpose) it would necessarily involve the commission of the offence of being concerned in the production of cannabis.[19]An agreement to commit the offence defined by the court in Nguyen is a statutory conspiracy contrary to section 1 of the 1977 Act. In our view, a person who is concerned in the production of cannabis contrary to section 4(2)(b) of the Misuse of Drugs Act 1971 is a principal offender, just as the producer himself is a principal offender contrary to section 4(2)(a). No question arises as to whether the defendant aid and abets the production of cannabis. Before they could convict of conspiracy to be concerned in the production of cannabis by another, the jury had to be sure that the defendant whose case they were considering joined a conspiracy knowing that its objective was to provide equipment for the production of cannabis by another and that when he joined it the defendant shared that intention. As the trial

judge put it:

“There has in each defendant’s case to be a specific intention that the production of cannabis by another should and would take place”
. A generalised awareness that the equipment may be used for the unlawful purpose would not suffice. That is the reason for the judge’s direction to the jury in Nguyen as to intention. The defendant must share in the cannabis producer’s purpose and lend his assistance for that purpose. In our view, section 1(2) of the 1971 Act has no application on the present facts. We reject the challenge in law to count 1. Application of Freddie Ross Johnson[20]The appellant was acquitted of the count 2 conspiracy in the first trial. The jury could not agree upon a verdict in respect of count 1 and the appellant was re-tried. Mr Conway applied to the trial judge for leave to adduce in evidence the appellant’s previous acquittal upon count 1. The trial judge declined to admit the evidence and Mr Conway now submits that the decision was unfair. We have described the two conspiracies charged by the prosecution. One concerned the supply of equipment to cannabis producers; the other concerned an agreement between the conspirators themselves to produce cannabis. Since some of the conspirators were identified as participants in the supply side of the business and others in the cultivation side of the business, and yet others in both, it was quite possible for some to be convicted of both conspiracies and others to be convicted of one or other of them. The appellant Ross Johnson’s principal role was the location and supply of equipment. It is conceded that at the appellant’s re-trial the prosecution made no suggestion that he was implicated in the count 2 conspiracy and it did not lead any evidence to that effect; secondly, it is accepted that the evidence in the second trial in support of count 1 was materially different from that adduced in the first trial.[21]There may be unusual circumstances in which fairness requires that the jury is informed of a previous acquittal, for example where the prosecution relies upon the testimony of a witness in a second trial whose evidence on a related matter has already been rejected in the first (see Cooke 84 Cr App R 286 (CA)). However, in general, an acquittal upon a different charge in an earlier trial is irrelevant to the issues before the court in the second trial (Hui Chi-Ming [1992] 1 AC 34 and R v H (JR) 90 Cr App R 440). In this case the question was whether the jury could infer so that they were sure from the appellant’s admitted or proved conduct that he was a count 1 conspirator. While there may have been some overlap of the evidence, the ultimate question for the second jury upon count 1 was quite different from the ultimate question for the first jury on count 2. We can see no principled basis upon which the appellant’s earlier acquittal should have been in evidence in the second trial and we are not persuaded that the judge’s decision was arguably unfair to the appellant. Counts 3 and 4 Abuse of process[22]These submissions were made by Ms Brimelow QC on behalf of Van Quan Dang and, as we understand it, they are adopted by Mr Griffiths QC, on behalf of Manh Toan Dang. The appellants were released without charge on 7 June 2010, following an investigation by the local police. They contend that a promise not to prosecute and a change in the appellants’ position in reliance upon it are to be inferred. We do not accept the invitation. It is not contended that the appellants were given notice that they would never be prosecuted for the offence. The local investigation was incomplete because it was unaware of the significance of other events that had recently occurred, of the telephone traffic between the appellants at or about the time of the incident, and the implications of the wider police operation. Upon a review of the available evidence a decision was made to prosecute. We agree with the trial judge that no abuse of process arguably took place.[23]We do not understand the basis for Ms Brimelow’s further submissions upon counts 3 and 4. The first jury could not reach agreement in Van Quan Dang’s case, which was, accordingly, listed for re-trial. He then pleaded guilty to counts 1, 3 and 4, and count 2 was ordered to lie on the file. The appellant cannot now, having admitted his guilt, be heard to raise grounds that go to the fairness of his trial upon those counts, or to the quality and effect of the evidence. We shall, however, express our views upon the underlying merits of the complaints made, since they were also made on behalf of Manh Toan Dang, who was convicted in the first trial. Severance[24]It was the prosecution case that an integral part of the criminal enterprise was its willingness to protect itself from competition and, if necessary, to use threats and intimidation to do so. The jury heard about confrontations with undercover police officers involved in surveillance in the period 2 – 3 June 2010. It was the prosecution case that the conspirators were armed with equipment designed to deter or negate electronic surveillance, including tracking devices. The incident on 6 June was relied upon by the prosecution to demonstrate the lengths to which the appellants were prepared to go in the protection of their interests. The defence case was that the appellants were engaged in legitimate business. In our judgment, evidence of the attack on Mr Andrew’s car was admissible in support of the prosecution case as to the true nature of the appellants’ business. Two members of the public who had no association with the appellants or their business were subjected, on the prosecution case, to a terrifying attack just because the appellants thought they were being watched. It was plainly permissible for counts 3 and 4 to be joined in the same indictment as forming part of the facts upon which the conspiracy counts were based. No unfair prejudice or embarrassment arose that required the judge to exercise his discretion to sever counts 3 and 4 from the indictment. Identification evidence[25]It is contended that the descriptions of their attackers given by the witnesses cast doubt upon the identification of the appellants and that, in breach of Code D, no identification procedure took place. Neither of the witnesses purported to make or claimed to be able to make an identification of the attackers. The judge held that there had been no breach of Code D and the case should be left to the jury. The prosecution relied upon the inference that three of the occupants of the Audi car had been the occupants of the BMW car from which the attackers had emerged. The judge provided the jury with an appropriate direction upon identification evidence, in so far as it related to the witnesses’ descriptions and the attackers’ clothing, and reminded the jury of the defence submissions. As to the participation of these appellants the prosecution relied on joint enterprise. We can see no sound basis for the submission that counts 3 and 4 should not have survived the close of the prosecution case. False imprisonment[26]It is submitted that the period of detention of Mr Andrews and Miss Voak, by trapping their car, advancing with a baseball bat, challenging them to come out and attacking the car, was not capable in law of amounting to false imprisonment. It seems to us to have been the plain inference that those who intercepted the complainants intended to detain them against their will and to instil fear. It was a matter for the jury to assess whether that is what the appellants achieved. We reject the submissions that the judge should have acceded to a submission of no case and that his directions to the jury were inaccurate or inadequate. Conclusion[27]None of the grounds advanced in respect of counts 3 and 4 have merit and the renewed applications are dismissed. Appeals against sentence Starting point[28]There is one ground of appeal that affects the sentences of all the appellants, namely that the sentencing judge fixed the starting point for the principal offenders at too high a level. It was agreed between the appellants that upon this issue we should receive submissions from Ms Brimelow QC and this sensible arrangement resulted in the efficient use of court time. Sentencing Council Guideline[29]The appellants rely upon section 125 of the Coroners and Justice Act 2009, which requires courts to follow any sentencing guideline that is relevant to the offender’s case, unless the court is satisfied that it would be contrary to the interests of justice to do so. The relevant guideline for “Production of a controlled drug” appears at pages 17 – 22 of the Sentencing Council’s definitive guideline, “Drugs Offences”. It is common ground that the guideline was relevant to the appellants’ cases notwithstanding that they were convicted of offences of conspiracy. The court is required to assess culpability (role) and harm (output or potential output). After balancing factors relating to the offender’s participation in the offence, the court will reach a conclusion whether the offender’s role was leading, significant or lesser. Harm is measured by the quantity or weight of the drug produced or the potential yield of the operation and, for the purpose of that measurement, categories 1 – 4 are created.[30]A category 1 offence involves the actual or potential yield of industrial quantities of cannabis for commercial use. The guideline does not define what it means by the term “industrial quantities”. The equivalent wording for a category 2 offence is an operation capable of producing “significant quantities for commercial use”; for a category 3 offence, “28 plants”; and for a category 4 offence, “9 plants (domestic operation)”. Some, but limited, assistance can be derived from other parts of the guideline. The indicative quantities for production of other drugs in category 1 (heroin and cocaine – 5 kg; ecstacy – 10,000 tablets; LSD – 250,000 tablets; amphetamine – 20 kg; and ketamine – 5 kg) are the same as they are for offences of importation (page 4) and of supply (page 11). The indicative quantity for cannabis offences of importation and supply in category 1 is 200 kg. We do not suggest that this is more than a most general indication of what is meant by industrial quantity. In the public consultation guideline that preceded the publication of the definitive guideline the top category of seriousness for production, measured by weight, was 100 – 400 kg. In the professional consultation document the weight range was abandoned and the current category 1 and category 2 descriptions (“industrial” and “significant”) were used. In explaining its view the Sentencing Council said at pages 23 and 24 of the professional consultation guideline:
“Where the drug involved is cannabis, the quantity has been described in terms of the scale of the operation rather than in weight or in number of plants. However, the number of plants has been given to aid the distinction at the lower end, as the only real means of differentiation between different levels of domestic operation would be the number of plants involved. These are intended as a guide and convey only approximate amounts. There are five levels of quantity to be considered for production/cultivation offences – very large, large, medium, small and very small. As with importation, specific quantities have been identified within each of these levels for some of the most commonly sentenced drugs of each class in order to aid the court when determining the most appropriate category. The exception to this is cannabis, as outlined above. Where the specific drug involved in the offence is not mentioned, equivalent quantities should be used.”
[31]The sentencing judge had heard evidence in two trials relating to the same conspiracies. During the life of the conspiracies the turnover of pots supplied as being suitable for the growing of “skunk” cannabis plants was over 1 million. The potential yield from those pots was 40,000 kg of cannabis at a value of some £100m. In respect of count 2 alone we were informed that the cannabis factories produced an estimated 1,000 kg of cannabis. The estimated yield of 40,000 kg was hotly disputed by the defence, which argued that there was evidence that there had been a significant proportion of sales to “legitimate” companies (about 50%). The defence interpretation of the evidence was not accepted by the prosecution. However, while making no concession from its case at trial, for the purpose of assessment of harm the prosecution was content to work from a basis that the unlawful yield from both conspiracies was in the region of 50%, namely 20,000 kg. Sentencing remarks

The judge said:

“From the general remarks I have made about the scale of this operation, there can be no question about any of the defendants being in any offence category other than category 1, having regard to culpability and harm caused. As the guideline states, where the operation is on the most serious and commercial scale involving industrial quantities for commercial use, sentences of 20 years and above may be appropriate, depending on the role of the offender.”
We note that the guideline’s reference to sentences of 20 years or more must apply specifically to class A offences since the maximum sentence for a class B offence is 14 years custody and, in the case of cannabis, the quantity in category 1 is already described as “industrial”. It is plain to us that the judge must have had this in mind since he made specific reference in his sentencing remarks to the maximum sentence of 14 years. The judge was pointing out, we think, that the guideline recognised that there would be some cases of exceptional seriousness requiring a sentence in excess of the upper range. The appellants do not dispute that, whether the offender fell to be sentenced as a count 1 or a count 2 conspirator, he fell within the category 1 guideline. The guideline states that the starting point for a category 1 offender who played a leading role in a cannabis offence (page 20) is 8 years custody and the category range is 7 – 10 years custody. The judge concluded that there was little or nothing to choose between the seriousness of the count 1 and count 2 conspiracies. Although count 2 involved the production of cannabis for the benefit of the conspirators, the result in the case of both counts was the same – the production of industrial quantities of cannabis. We would observe only that, other things being equal, personal production for commercial gain (count 2) might be regarded as the more serious offence because the conspirators were personally embracing the risk of making substantially more profits from drug dealing, the need to involve others in the factory cultivation and the employment of other offences, such as the extraction of electricity, to achieve their purpose. The counterbalance in the present case is that the market for cannabis-growing products was much larger than the conspirators’ capacity to expand their own cannabis factories.[33]The judge had heard evidence about the tetrahydrocannabinol (“THC”) content respectively of cannabis resin of earlier years (3 – 7 %), the enhanced THC content of modern skunk (15 – 20%) and the strength of the small sample of cannabis analysed following one of the seizures in the present case (7 – 12%). He first expressed the view that a comparison could be made between the effects of skunk and the effects of class A drugs during the submissions in mitigation of Mr Griffiths QC. In his sentencing remarks the judge said that skunk was potentially highly dangerous to those who are vulnerable to narcotic effect. About this there can hardly be any dispute, but the judge continued:
“In my judgment, the distinction to be drawn between cultivated skunk and class A drugs is not a large one”
It has been urged upon us forcefully by Ms Brimelow QC and Mr Griffiths QC that the judge was signalling an intention to adopt a starting point which reflected his opinion that there was little to choose between the harm done by skunk and the harm done by a class A drug. If the judge took account of that opinion in assessing the appropriate starting point, he departed from the guideline without justifying that course as being in the interests of justice. We accept the submission that the judge was not permitted to sentence according to a personal opinion that the starting points and ranges for category 1 cannabis offences were in general too low for “skunk” cannabis offences. The guideline embraces all forms of cannabis. However, it is conceded on behalf of the appellants that the judge was entitled, at step 2 of his assessment, to take account of the somewhat increased potency of the cannabis in whose production the appellants were concerned when selecting his starting point within the advised range (guideline pages 25 and 26).[34]Immediately after his observation as to the potency of the drug (paragraph 33 above)

the judge said:

“You will know that the Sentencing Council has recently issued a guideline effective from 27 February 2012. In this case there were two conspiracies charged, count charging being concerned in the production of cannabis, which related to the accumulation of equipment, premises and the like and count 2 charging the actual production of cannabis. The conspiracies are factually distinct although the conduct was concurrent in time, but each involves the end result of the cultivation of cannabis on an industrial scale. The maximum penalty for each different conspiracy is 14 years imprisonment and, in theory, the sentences could run consecutively. There should in my view be some distinction between defendants who are party to both conspiracies and those who are convicted or plead guilty to only one. In the course of the first trial, it was suggested that count 2, the production of cannabis, was more serious that count 1 of being concerned in the sense of importing and selling equipment. I do not think that there is a material distinction in terms of culpability because the end result is the same. It just means that the individual defendant who is convicted of both is more culpable.”
After making reference to the scale of the operation (paragraph 33 above)

the judge continued:

“As I have also said, skunk cannabis, with its high THC content, can, and in my view should be, be treated as deserving a higher starting point than 8 years custody for a single charge for an offence in category 1, class B. In this case there are two conspiracies and although in theory there could be a maximum sentence of 28 years, that would, in my judgment, be excessive and disproportionate, even though this is said to be the largest case in Europe and the guideline does refer to sentences of 20 years and above. After careful consideration, I have decided that the starting point for leading participants should be 14 years imprisonment for those convicted of both conspiracies in counts 1 and 2. I appreciate that this is higher than the 5 ½ to 8 years range for class B drugs but, as I have explained, there are two conspiracies and skunk is more dangerous than resin or herbal cannabis.”
[35]Mr Griffiths QC emphasised that, although the sentencing judge was entitled to have regard to factors that specifically aggravated the offences of conspiracy, many of those itemised at page 21 of the guideline would be present in an offence of such a scale that it lay within category 1. There is a risk that in assessing the seriousness of the offence the sentencing judge double-counted aggravating factors. Conclusion[36]We do not accept that HHJ Hone QC erred in his approach. We agree that the juxtaposition of the judge’s observations as to potency of the cannabis product and the selection of the starting point gives the impression that he was intending to sentence outside the guideline but, in our judgment, the judge was applying the guideline to the unusual facts of the case before him. He said that for the production of skunk in category 1 he would take a starting point higher than 8 years. That was a permissible conclusion reached by the application of significant aggravating factors at step 2, including the potency of the drug produced. Neither count 1 nor count 2 was an umbrella conspiracy. There were two separate conspiracies; the criminality embraced by membership of both conspiracies was manifestly more serious in culpability and harm than was membership of one conspiracy alone.[37]In the guideline “Offences Taken into Consideration and Totality” (which applies to sentences passed after 12 June 2012) the Sentencing Council said, at page 5:
“The principle of totality comprises two elements: 1. All courts, when sentencing for more than a single offence, should pass a total sentence which reflects all the offending behaviour before it and is just and proportionate. This is so whether the sentences are structured as concurrent or consecutive. Therefore, concurrent sentences will ordinarily be longer than a single sentence for a single offence. 2. It is usually impossible to arrive at a just and proportionate sentence for multiple offending simply by adding together notional single sentences. It is necessary to address the offending behaviour, together with the factors personal to the offender as a whole.”
[38]This guidance reflected good sentencing practice as it existed before the guideline was published. In the present case the judge took the view that so serious was involvement in both conspiracies that the starting point for their leading members should be the maximum sentence permissible for either one of them. This is not a judgment that can justifiably be open to criticism, provided that the judge’s assessment of overall seriousness was accurate. We do not accept that the judge’s conclusion was arguably the result of double-counting aggravating factors. The scale and sophistication of the operation, which spanned a period of four years and produced cannabis in quantities that, on any view, exceeded the scope of the guideline ranges by a comfortable margin, demanded a total sentence, if imposed concurrently, well outside the top of the category 1 range. We do not consider that the judge sentenced outside the Drugs Offences guideline.[39]The judge’s observation that “theoretically” the maximum sentence for both conspiracies was 28 years was accurate. The judge could have adopted the alternative approach contemplated by the Totality guideline, namely to impose consecutive sentences and to reduce each sentence significantly so as to ensure that the total was a just and proportionate reflection of the criminality revealed. HHJ Hone QC chose, as he was entitled, to pass concurrent sentences and in doing so he plainly had in mind the need to impose sentences on the leading offenders that reflected the principle of totality: he made express reference to it in his sentencing remarks (paragraph 34 above). We conclude that the judge made no error of principle or approach when concluding that 14 years imprisonment was the appropriate total starting point for those playing a leading role in both conspiracies.[40]We turn, therefore, to consider the submissions made on behalf of each appellant separately. In doing so we must observe that the judge’s identification of leading roles for those involved in both conspiracies is not in dispute. Since the judge heard evidence in both trials, an advantage which this court does not possess, we would require a clear demonstration that the judge erred in making an assessment of individual roles played by those further down the chain of command before acceding to submissions made on that ground. Manh Toan Dang[41]The judge concluded that although the appellant was aged 26 at the date of sentence he was “vigorously ambitious”, “a driving force in escalating the conspiracies” and “very much one of the masterminds of the operation”. He was sentenced to 14 years imprisonment concurrent upon counts 1 and 2. The appellant was also convicted of counts 3 and 4. While those offences reflected an aspect of the conspiracy, the judge concluded that a consecutive sentence must be imposed because the incident comprised “a most intimidating [attack] on two totally innocent members of the public”. The judge concluded that the appropriate sentence upon count 3 after a trial was 2 years imprisonment, which he reduced to 12 months, further to reflect the principle of totality.[42]Mr Griffiths QC submitted that in principle the sentence upon count 3 should have been ordered to run concurrently. We do not agree, for the reasons given by the sentencing judge. It is not an inevitable feature of a conspiracy to produce or be concerned in the production of cannabis that the conspirators will use intimidation and violence towards members of the public who accidentally stray too close to the operation. A consecutive sentence was appropriate and the resultant total was not excessive having regard to the criminality involved. Mr Griffiths sought to persuade us that the judge failed to reflect in his sentence a proper distinction between the participation of Manh Toan Dang and that of his brother, Nhien Van Dang, in the conspiracies. Mr Griffiths argued that Manh Toan Dang was not as intimately connected to the count 1 and count 2 cannabis farms as was his brother. Manh Toan Dang was mainly involved in the supply of equipment. He had ploughed the profits back into the business and not gambled it away as had his brother Nhien.[43]As we have said, the judge was in the best possible position to assess the roles of the appellants respectively. Mr Griffiths made persuasive but discrete comparisons between one brother and the other but he did not undermine the judge’s assessment of Manh Toan Dang’s role summarised at paragraph 41 above. We see no grounds for interfering with that assessment or the resultant sentence. Hung Tuan Dang[44]Hung Tuan Dang was the youngest of the brothers, aged 23 at the time of sentence. He had previously served a sentence of 3 years detention for conspiracy to rob. The judge concluded that Hung had played a significant, borderline leading, role but he had been given responsibility beyond his capabilities. Having observed the appellant give evidence, the judge concluded that he was arrogant and dismissive, fully aware of the extent of the conspiracies to which he lent himself, but he had been involved for a shorter period than some of the others. He betrayed no sense of remorse. Hung managed warehouses and deliveries. He had direct connections with four of the cannabis farms and was in constant communication with his brothers. The judge adopted a provisional starting point of 9 years and gave credit for the fact that the younger Hung was under the influence of his older brothers. He was sentenced to 7 years imprisonment concurrent upon counts 1 and 2. The judge passed a consecutive sentence of 12 months imprisonment upon count 3, and 3 months concurrent upon count 4. We do not accept Mr Kivdeh’s submission that the judge should have assessed Hung’s as a lesser role in the conspiracies. As the judge explained, he was involved to a significant extent but a suitable discount was made from the provisional starting point to reflect the personal features of Hung’s case. Although Mr Kivdeh submitted that there was no evidence of “management” of warehouses and deliveries, it seems to us that the judge was entitled to draw inferences as to the true extent of Hung’s involvement. He had been sufficiently trusted, for example, to be put in charge of new outlets in Bristol and Ireland but that had come to nothing before the appellants were arrested, probably, as the judge said, because Hung was promoted above his ability. We are not persuaded that the total sentence imposed was manifestly excessive. Nhien Van Dang[45]The prosecution suggested that there were features of Nhien’s involvement that were characteristic of a leading role such as directing and organising, influence over others and substantial financial gain. Other aspects were characteristic of a significant role. The judge found that Nhien Van Dang, then aged 29 years, with his brother Manh Toan Dang, directed and organised production of cannabis on a commercial scale. A minimum of 24 properties that became cannabis factories had been rented by him. He was “the property man” concerned in both counts 1 and 2. He had gambled away very substantial profits from the business. He had a previous conviction for cultivating cannabis in March 2006 for which he had received a suspended sentence of imprisonment with a requirement to perform unpaid work. The judge recognised the progress that Nhien had made while in custody to address his addictions but concluded that he had to be sentenced as a leading player. Although the evidence against him had been overwhelming it had taken some courage to plead guilty at a late stage and the judge would give appropriate credit. The reduction was substantial. The judge adopted a starting point of 14 years and reduced it to 10 years concurrent upon counts 1 and 2. The judge made no order in respect of the breach of suspended sentence. The judge was obliged to take one of the courses set out in paragraph 8(2) of schedule 12 to the Criminal Justice Act 2003 unless (paragraph 8(3)) he was of the opinion that it would be unjust to do so by reason of the extent to which the offender had complied with community requirements and/or the facts of the subsequent conviction. In the event that the judge chose to make no order because the interests of justice required such a course his reasons should have been stated but they were not. We shall assume that the judge concluded on proper grounds that it would be unjust to order the suspended sentence to take effect and made no order for that reason. In our view, it is not demonstrated that the judge erred in principle or that the sentence imposed was manifestly excessive. Ngoe Tien Ly[46]Ngoe Tien Ly was aged 28 years at the date of sentence. He had several unlike convictions as a juvenile. He pleaded guilty at a late stage to counts 1 and 2. He was a director of Dynamic Imports Limited (a trading company at the centre of the business) who, in the judge’s view, had close links with the leading players in the conspiracies. He fully understood the breadth and range of the business. The accepted basis of plea recognised features of a significant and, in some respects, a lesser role in the business. In the round the judge assessed the appellant as playing a significant role. He was to be distinguished from others by the fact that he stood to gain only by drawing a salary and any dividends from the company. There was no evidence that he benefited directly from the sale of cannabis. The judge adopted a starting point of 9 years. The judge was willing to give full credit for late pleas of guilty because he accepted the appellant was under some pressure not to break ranks. Sentences of 6 years imprisonment concurrent were imposed upon counts 1 and 2. Mr McLoughlin did not renew in oral argument a written submission as to disparity. We consider that his judgement was sound. For the reasons we have already given, we do not criticise the judge’s starting point for the leading offenders, nor his assessment of the hierarchy of offenders. We are not persuaded that the sentence imposed on Ngoe was wrong in principle or manifestly excessive. Hai Ban Tran[47]Hai Ban Tran, then aged 32 years, was sentenced to 4 years imprisonment concurrent upon counts 1 and 2. Mr Sidhu QC argued that the sentence was too long for a man who should have been sentenced as a distribution manager of a single warehouse. In our judgment the judge was entitled to assess the importance of Hai Ban’s role by reference to the status of his company in the conspirators’ business. The judge discounted sentence for the features of personal mitigation on which the appellant relied. We do not conclude that the judge was wrong in his assessment of the appellant’s role as significant and we are not persuaded that the sentence was manifestly excessive. Van Quan Dang[48]Van Quan Dang, then aged 38 years, was to be sentenced for his participation in the count 1 conspiracy and counts 3 and 4 following his pleas of guilty tendered shortly before his re-trial. The judge concluded, having heard the evidence in the trial, that the appellant’s role in the count 1 conspiracy was central. He set up companies to be used as vehicles for the sourcing and supply of equipment and proceeded to find and market that equipment. He was “a dynamic leader” who showed no trace of the depression from which it was now contended he had suffered. He was in frequent and close contact with Manh Tuan Dang, was one of the organisers of the business and expected substantial financial rewards from his involvement. The judge recognised that a distinction should be made between Van Quan Dang and those who had also conspired to produce cannabis (count 2). The judge took a starting point of 11 years. He did not accept that the appellant was disabled by depression while he was committing the offence but he took account of a psychiatric report dated 12 June 2012 prepared by Dr Seena Fazel. When first seen while on remand on 11 April 2011 the appellant was suffering a clinical depressive disorder “of at least moderate severity”. The appellant was regarded as a suicide risk. He was transferred to the Bracton Centre, a medium secure psychiatric unit, where he was treated with anti-depressant medication. His condition improved and he was returned to HMP Belmarsh. At the time of the report the appellant was mildly depressed but taking medication when required. The judge acknowledged that the appellant was entitled to credit of 10 per cent for his pleas of guilty but on count 1 he imposed a sentence of 9 years imprisonment to reflect additional features of personal mitigation. He imposed a consecutive sentence of 12 months imprisonment in respect of count 3 and 3 months imprisonment concurrent upon count 4. The appellant was sentenced as a joint participant in counts 3 and 4, although it was accepted that he had been the worse for drink and he may not have exited the car at the time of the attack. It was subsequently pointed out to the judge that he had not made any allowance for the appellant’s pleas of guilty to counts 3 and 4 and he corrected the sentence upon count 3 to 323 days consecutive, making 9 years and 323 days in all. We do not accept that the judge failed adequately to reflect the mitigating features available to the appellant. He was a leading player in the commercial exploitation of the cannabis market on an industrial scale. The principal sentence was neither wrong in principle nor manifestly excessive. The consecutive sentence imposed was justified in principle and in length. Tuan Van Le[49]Tuan Van Le was aged 35 years at the time of sentence and was of previous good character. He was a company director of Hydroponics 4U and London Nails which were both outlets for illegal trade in cannabis producing equipment (count 1). This appellant also ordered tracking devices and radios for security. He played a significant role because he was in October 2009 sourcing a wider range of products for illegal trade. The judge adopted a starting point of 8 years and awarded credit of 25% for the appellant’s plea of guilty. Sentence was therefore 6 years imprisonment. Tuan Van Le appeals against sentence on the additional grounds that the judge misidentified the appellant’s role as towards the top of the significant range and that Tuan Van Le should have received a greater discount so as to place him in a similar position to Hai Ban Tran and Ngoe Tien Ly. As we have already said in the case of Hai Ban Tran, the judge was entitled to assess the role of the offender by reference to the status of that part of the business he was conducting in relation to the conspiracy as a whole. Also, Tuan Van Le was exercising a managerial function and we conclude that the judge was justified in finding that he played a significant role. There was no unfair disparity between his case and others. The judge, as we have also noted, made discounts from the provisional starting point not just for pleas of guilty but also for personal mitigation when he found that it was significant in an individual case. Freddie Ross Johnson[50]The judge equated the position of Freddie Ross Johnson with that of Van Quan Dang. Mr Conway relied upon the common arguments addressed to the court by Miss Brimelow QC. We have concluded that the judge did not err in principle or in his assessment of seriousness. Thuong Tu[51]Thuong Tu was aged 54 years at the date of sentence. He was convicted by the jury upon count 1. Thuong Tu came from a pastoral and fishing background in Vietnam; he entered the United Kingdom in 1979. For three years he was “one of the trusted operators” of one of the outlets, Wendy’s Garden, introduced to the conspiracy by his friend Trong Van Le. He paid £6,000 for a van with which to carry out deliveries in pursuit of the illegal trade. He was stopped by police in February 2008 while on his way to make a delivery. He was stopped again on his way to Leeds in April 2008 and again in South Wales in July 2008. Later, he suffered a heart attack and, when he returned to work, performed a lesser role. The judge assessed that he continue to play a significant role up to June 2010 by acting as a messenger or go-between. He adopted a starting point of 5 years and discounted sentence for personal mitigation to 4 years imprisonment. Mr Brown submitted that the sentence was excessive. He argued that the appellant was in a similar position to that of Gary Hadley who was made the subject of a suspended sentence order. We do not agree. The appellant was an active participant in an enterprise that he knew to be illegal for a significant period of time. He had repeated reminders of the risks he was taking but continued regardless. As was pointed on behalf of the respondent by Mr Davies QC, the illegal trade was the appellant’s way of life. There was evidence that he gave instructions to Hadley who was paid on a piece-work basis. We are not persuaded that the sentence imposed was wrong in principle or manifestly excessive. Conclusion 52. For the reasons we have given, we are minded to dismiss each of the appeals against sentence. However, an order dismissing the appeals against sentence shall not come into effect until the time for appealing to the Supreme Court against the count 1 convictions has expired or the Supreme Court has dismissed the appeals against convictions, whichever is the sooner.

Cited in 1 later judgment