Gray, R v [2018] EWCA Crim 1075

Case No 2017/04403/A1[2018] EWCA Crim 1075
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday 1 st May 2018
The Strand
London
WC2A 2LL
B e f o r e:
LADY JUSTICE SHARP DBE
MRS JUSTICE ANDREWS DBE
and
Venue THE RECORDER OF LEEDS
(His Honour Judge Collier QC)
(Sitting as a Judge of the Court of Appeal Criminal Division)
Between
R E G I N ACrown- v -
Between
RAYMOND GRAY
Computer Aided Transcription byWordwave International Ltd trading as DTI165 Fleet Street, London EC4A 2DYTelephone No: 020 7404 1400; Fax No 020 7404 1424(Official Shorthand Writers to the Court)
Miss L Collier appeared for Appellant
J U D G M E N TTuesday 1 st May 2018
[1]On 27th June 2017, following a trial in the Crown Court at Northampton, the appellant was convicted of one count of conspiracy between 1st January and 3rd August 2016 to supply a controlled drug of Class A (cocaine). His five co-accused had all pleaded guilty at various times to being involved in the same conspiracy, as well as to other offences. All six were sentenced on 8th September 2017. The appellant received a sentence of seven years and six months' imprisonment. He appeals against that sentence with the leave of the single judge.[2]The case followed a detailed and lengthy police investigation into the criminal activities of a number of individuals who were engaged in the supply of very large quantities of cocaine. The scale of the drug-related activities and the level of the criminality involved provided powerful support for the conclusion that they were well-established and already active at the time that the police investigation started in and around August 2016. The police used various means and techniques to investigate the group's actions, and to demonstrate who was involved and the level of offending. This evidence included cell-site evidence, vehicle evidence (ANPR), observation evidence, reviews of CCTV footage and evidence of money passing through bank accounts, as well as evidence of what was found after searches of premises used by the group.[3]Andrew Morales was the leader of an organised criminal group based in Northampton. He was a very high level cocaine dealer organising and arranging the obtaining and supply of many kilograms of cocaine. His right-hand man, involved in many aspects of the running of the group, was Barry Moylan. Moylan carried out the riskier elements of the business, collecting, storing, moving and passing on the cocaine and organising the activities of lower members of the hierarchy. Asa Beasley was involved in the storage and transportation of the drugs which were passed on to Clive Andrews, who was responsible for their cutting and onward distribution.[4]Such was the scale of Morales' enterprise that he sourced his cocaine from another significant drug dealer: the appellant's brother, Richard Gray, who was based in the Warrington area. Richard Gray had access to large quantities of import-strength cocaine and must have had extremely close links to those who were involved in the importation of the drugs into the United Kingdom.[5]The Crown's case at trial was that the appellant was directly involved in the supply of cocaine on at least one occasion and that he played an important role by assisting his brother in supporting the arrangements for the supply of cocaine to Moylan's group.[6]On 2nd August 2016, at 9.15pm, police officers in an unmarked police vehicle saw Beasley driving a VW transporter on the A50, heading southbound. Beasley was returning from a trip to Warrington, where he had met Richard Gray, and was en route to meet Andrews. The officers stopped the vehicle and arrested Beasley. A search revealed a kilogram block of compressed cocaine at 64 per cent purity, worth somewhere between £30,000 and £91,000.[7]Research around ANPR and telecommunications data identified further dates when either Moylan or Beasley had travelled to Warrington for the same purpose: i.e. to collect drugs.[8]Following Beasley's arrest, Morales and Andrews were in communication with each other. They made various attempts to contact Beasley and were also in communication with members of his family, plainly in an attempt to locate him. They were subsequently arrested by the police in or around December 2016.[9]There was no evidence that the appellant had any involvement in the events that took place on 2nd August 2016 involving the co-accused, leading to the arrest of Beasley and the discovery of a large quantity of cocaine in his vehicle. The Crown used those events as an example of the nature and seriousness of the criminal enterprise in which Richard Gray and Morales were the prime movers. It was an important starting point when considering all further interactions between the Morales group and Richard Gray, and provided important context and background for other days when the appellant was involved.[10]There was strong circumstantial evidence that on 21st April 2016 the appellant was the person who met with Moylan at a location in Warrington to hand over drugs supplied by his brother. Shortly afterwards, Moylan was in contact with Morales.[11]Besides the evidence of the events of 21st April 2016, the Crown also relied on evidence of a meeting on 30th June 2016 between the appellant and Andrews at the Shell Services station at the junction of the A50 and the A38, near Uttoxeter, which plainly had to do with the ongoing supply of cocaine to Morales' group. Although there was no evidence that drugs were handed over on the occasion of that meeting, cell-site evidence indicated numerous telephone conversations between the brothers, closely followed by contact between Richard Gray and Morales, who in turn contacted Andrews, presumably to set up the meeting.[12]On the evening of 17th July 2016, Richard Gray had a meeting with Beasley and Andrews, again at the Shell Services station. Cell-site evidence showed that Richard Gray was in frequent contact by telephone earlier that day with Morales and with the appellant, and that Morales was contacting Moylan, Andrews and Beasley. Both Beasley and Andrews had further telephone contact with Morales following the meeting. Within 20 minutes of the meeting, Richard Gray was in telephone contact with the appellant, who was at home in Warrington.[13]There was no evidence of any direct telephone contact between the appellant and any member of the conspiracy, other than his own brother. The only evidence of personal meetings was the evidence of the meeting with Moylan in April 2016 and the meeting with Andrews on 30th June.[14]The appellant was arrested at his partner's address on 31st January 2017. He made no comment.[15]The Crown provided sentencing notes for the sentencing exercise. In reference to the definitive sentencing guidelines for the supply of Class A drugs, the Crown stated that there were elements of significant and lesser role in the appellant's case. They said at paragraph 70 of the notes:
"Given the quantity of drugs involved and his distinct role, [the appellant's] case could be said to fall within category 2, with a starting point based on 1 kilogram of cocaine."
They then set out the range in the sentencing guidelines and continued: 16. "However, it is submitted that the nature and scale of [the appellant's] offending – twice the quantity for the suggested starting point – requires an upward adjustment of the starting point within the above ranges. Furthermore, the high purity of the drugs involved is an aggravating feature in this case." They then referred to what is said about purity in the definitive guidelines.

They then set out the range in the sentencing guidelines and continued:

[16]Miss Collier (who did not appear below) submitted, as indeed did defence counsel at the sentencing hearing, that this was a case that fell squarely into the "lesser" role. The judge had given some indication that he was attracted by that submission, although when the prosecution opened the case, the transcript makes it clear that he had not yet formed a final view on the point.[17]Miss Collier referred this court to R v Kasim Ali Khan and Others [2013] EWCA Crim 800, in which an explanation was given by this court as to how sentencing judges should approach the use of the guideline in cases of conspiracy. At [34] and [35] Treacy LJ said this:
"34. … a particular individual within a conspiracy may be shown only to have been involved for a particular period during the conspiracy, or to have been involved in certain transactions within the conspiracy, or otherwise to have had an identifiably smaller part in the whole conspiracy. In such circumstances the judge should have regard to those factors which limit an individual's part relative to the whole conspiracy. It will be appropriate for the judge to reflect that in sentence, perhaps by adjusting the category to one better reflecting the reality. 35. As a balancing factor, however, the court is entitled to reflect the fact that the offender has been part of a wider course of criminal activity. The fact of involvement in a conspiracy is an aggravating feature since each conspirator playing his part gives comfort and assistance to others knowing that he is doing so, and the greater his or her awareness of the scale of the enterprise in which he is assisting, the greater his culpability."
[18]In his sentencing remarks, the judge rightly described the central conspiracy as a very substantial operation consisting effectively of the importing of cocaine from the north-west of the country and bringing it down to Northamptonshire for it to be processed by cutting and packaging and then distributed from that stage onwards. He ascribed to Morales and Moylan the central roles in each of the contacts with the Grays in the north-west. He described the appellant as an assistant on more than one occasion to his brother. He decided that Richard Gray and Morales fell within the category of "leading" role and that Moylan, Andrews and Beasley fell into the category of "significant" role. He then said this:
"As far as [the appellant] is concerned, because he was acting as an occasional deliverer for his brother and otherwise a gofer for his brother, it seems to me I can deal with him as having a lesser role, but as I have already said, I am satisfied that not only is he guilty of what the jury found him guilty of, and what he has had to admit as a result of that, but his knowledge of this operation is more than he was ever prepared to accept."
Bearing in mind that the appellant fell below the level of Moylan and Beasley, for whom he had taken the starting point of nine years, before discount for Beasley's guilty plea, the judge took a starting point of eight years' imprisonment for the appellant and adjusted it downwards to seven years and six months to take account of the fact that the appellant had never before been involved in any offending of this nature, despite the fact that he had other previous convictions.[19]Miss Collier submitted that this was a manifestly excessive sentence, notwithstanding that it fell squarely within the ambit of the range in the guidelines for a person with a lesser role in a category 1 conspiracy. For such an individual the starting point is one of seven years' custody, with a range of six to nine years. The cocaine was of high purity, which is a statutory aggravating factor, but there were no relevant or recent convictions, which is a mitigating factor. She submitted that, even if the judge had been right to leave the appellant within the category of "lesser" role in a category 1 conspiracy, there was no justification in an uplift from the starting point in the guidelines of seven years' custody in his case.[20]However, Miss Collier’s principal submission was that where the judge fell into error in this case was in not following the guidance of this court in relation to the isolated offences or the role that was placed within the overall conspiracy; and that the judge should in fact have reflected the overall offending by bringing the appellant back down into category 2. Having done so, he should have taken a starting point of five years' custody. We note that the range within that category is between three years six months and seven years' custody. As the prosecution pointed out in their sentencing note, the high purity of the drugs involved would be an aggravating feature, and indeed there was evidence to suggest that the appellant's offending involved not only a drop of drugs of around a kilo on one occasion, but certainly involvement in setting up another such drop or organisation of such a drop on another occasion. These matters would have justified the judge, even if he had taken category 2 as his starting point, in elevating the offending to somewhere near the top end of the category. We also bear in mind the fact that this was an offence of conspiracy. The judge, of course, had the advantage of hearing all the evidence at trial and assessing the parts that were played by each of the offenders within the conspiracy. It may well be that he could have explained his reasoning in a little more detail, and it may well be that the appellant might feel a little harshly dealt with. It was certainly a robust sentence. But if one stands back and looks at the overall offending and the nature of this conspiracy, it seems to us that the judge was entitled to come to the conclusion that the appellant had a greater knowledge of the scale of the operation than he was prepared to admit. He was best placed to evaluate the appellant’s role overall. There were some features which were more akin to "significant" than "lesser" role, and there is not that much of a difference between the upper end of category 2 and the mid-range or lower range of category 1.[21]Standing back and looking at this sentence overall, it seems to us that, whilst it was on the robust side, this sentence could not be described as manifestly excessive for the offending involved. For those reasons, despite the engaging way in which the appeal was advanced by Miss Collier, this appeal is dismissed.