Waddington, R. v [2018] EWCA Crim 958

[2018] EWCA Crim 958

Case No 201605685/A1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Thursday, 19 April 2018

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE SIMON

MR JUSTICE EDIS

Venue THE RECORDER OF LEEDS

HIS HONOUR JUDGE COLLIER QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

VINCENT WADDINGTON

Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

Mr J Smith appeared for Applicant

J U D G M E N T (Approved)

[1]MR JUSTICE EDIS: Vincent Waddington is now 43 years old. On 28 November 2016 in the Crown Court at Liverpool he was sentenced to nine years' imprisonment for conspiracy to supply class B drugs, namely amphetamine, of which he had earlier been convicted after a trial. One other man was convicted of the same offence at trial and was sentenced to six-and-a-half years' imprisonment. Five others pleaded guilty and received prison sentences which varied according to their role in the conspiracy. He now renews his application for leave to appeal against sentence after refusal by the single judge.

[2]The applicant was part of a group who conspired to supply significant quantities of amphetamine from Merseyside to the West Midlands in 2015 and early 2016. He was the organiser at the Liverpool end and had been assisted throughout by various of the other defendants. The group in the West Midlands was a separate group but there were many trips between them and many journeys involving the transfer of drugs.

[3]There was such a journey on 17th March 2015 which was observed by police officers carrying out surveillance duties and that was subsequently investigated by the use of automatic number plate recognition of motor vehicles and some drug seizures. In the course of the investigation there were four drug seizures involving amphetamine totalling in excess of 27 kilograms with a purity of 40 per cent. The amphetamine itself that was seized was worth, at street level, about £216,000.

[4]Of course, in an investigation of this kind what is seized by the police before any arrests are made is simply a sample of what is being actually trafficked. There were undoubtedly further deliveries of amphetamine between these two groups and a very substantial but unknown quantity of drugs was trafficked and no doubt a very substantial but unknown sum of money changed hands.

[5]The applicant was arrested on 28 January 2016 and answered no comment to all questions that he was asked.

[6]Mr. Recorder Riordan, Q.C., when sentencing, after having conducted the trial, said that the case was a Category 1 drug conspiracy and that is undoubtedly so and it was, we understand, accepted by all of the conspirators who fell to be sentenced. This was wholesale distribution of anything up to 100 kilograms of relatively high purity amphetamine and that, said the Recorder, took the case to the top of the relevant range. Undoubtedly the applicant's role was a leading role and the Recorder said, correctly, that that involved a starting point of eight years with a range of seven to 10 years.

[7]The Recorder having observed that this applicant has a previous conviction for drug trafficking dating back to 2015 which involved the import and export of drugs to and from the Netherlands, regarded that as an aggravating feature.

[8]The Recorder's task was, of course, to assess the different roles of the various people who had to be sentenced and to place them within the overall conspiracy. That was a task which he was uniquely able to fulfil having presided, as we have said, over the trial.

[9]The particular feature to which Mr Smith in his able and succinct submissions advanced this morning draws to our attention is the fact that this applicant's son had been murdered. That undoubtedly occurred. The death of that young man featured in the trial because the applicant's case was that he was associating with drug traffickers not in order to advance their business but in order to glean information about who had killed his son, so that he could either seek revenge or pass the information on to the police or perhaps both. The jury rejected that and there was therefore an evaluative exercise to be undertaken by the judge as to what level of credit in that regard was appropriate.

[10]The judge assessed the starting point before considering mitigating features as 10 years, which is the top of the relevant bracket. He then deducted one year to give effect to the mitigation, which was no doubt intended to reflect the fact that the murder of the young man must have borne particularly heavily on the applicant because during much of the investigation of the murder he had been in prison and unable to assist his family and give them support. That was then the sentence: nine years' imprisonment.

[11]The single

judge said when refusing leave:

"1. The starting point of 10 years was within the guidelines but justifiably at the top end of the bracket. It is suggested that there is disparity between this sentence and the sentence imposed on [another man] after pleading guilty to involvement in a separate larger conspiracy. I do not consider that a sentence on a participant in a different conspiracy can be used to advance a case of disparity. 2. The starting point of 10 years was reduced to 9 years to reflect the unusual and personal mitigation available to the applicant. It is suggested that a greater reduction was appropriate to reflect that mitigation. I am not persuaded that it is arguable that a reduction of one year was outside the range of permissible reductions to reflect this mitigation."

We agree with those observations and would only add this. The Recorder regarded the misuse of a family bereavement to found a dishonest defence as, if anything, a somewhat aggravating feature. That was a factor which he was uniquely able to assess having presided over the trial and we would not wish to undermine that finding which appears to us to be certainly open to him. The Recorder did not make a reduction in sentence in the usual proportions where an offender has given valuable assistance to the police. In our judgment he was entitled to take that course. That approach is rather confirmed by a note which has been placed before us by Mr Smith, fulfilling his duty as counsel to assist the court even with material which may not strongly advance his client's case. That note includes the text of an email from the police officer who was in charge of the investigation of this murder, two convictions having been obtained but one further suspect being at large. The officer says, in summary, that the applicant has been extremely careful in what he was prepared to tell the enquiry into his son's murder, if anything, and that the information that he has provided was exiguous. That, it seems to us, reinforces the Recorder's rather sceptical approach to this aspect of the case as a proper head of mitigation. Nevertheless, he did discount the sentence by one year and in doing so, in our judgment, plainly did justice. For those reasons we consider that this application is not properly arguable and it is dismissed. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.