R v Anthony Henry Terry [2025] EWCA Crim 726

WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice.This Transcript is Crown Copyright.  It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority.  All rights are reserved.[2025] EWCA Crim 726Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday, 22 May 2025
Before
LORD JUSTICE FRASERMR JUSTICE HILLIARDMR JUSTICE CONSTABLE
Between
REXCrownV
Between
ANTHONY HENRY TERRY__________Computer Aided Transcript of Epiq Europe Ltd,Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JETel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)_________MR T MONTGOMERY appeared for ApplicantMR P MITCHELL appeared for Crown_________APPROVED J U D G M E N T
[1]MR JUSTICE CONSTABLE: Mr Anthony Terry applies for an extension of time in respect of an application for leave to appeal and leave to appeal against a sentence of 25 years which was imposed on 8 December 2023 following his guilty plea on the first day of trial to four counts relating to the importation and supply of cocaine and one count relating to the importation of cannabis. The sentence of 25 years was ordered to run concurrently on each count and concurrent with an 18-year sentence imposed earlier in 2023. The single judge referred the application to extend time to the full court whilst indicating that he considered two of the grounds of appeal reasonably arguable.[2]The 25 year sentence related to offending during the period from March to September 2020, earlier in time than the subject of the 18-year sentence which related to a single export of cocaine to Ireland on 21 February 2021. In setting out the facts, we deal with the events in chronological order.[3]At the same time that Mr Terry pleaded guilty, his co-accused, Mr Michael Collis pleaded guilty to two counts, namely fraudulent evasion of a prohibition on importation and conspiracy to commit a crime abroad, and was sentenced to 12 years and six months' imprisonment. Two other co-accused were convicted after a three-week trial conducted by the sentencing judge. Mr Mohammed Khan was convicted of conspiracy to supply a controlled drug of class A and sentenced to 13 years' imprisonment. Mr Joshpal Kothiria was convicted of conspiracy to commit a crime abroad and was sentenced to three years' imprisonment.[4]Mr Terry had also renewed his application for leave to appeal against the sentence of 18 years to which we have referred, which was imposed on 28 January 2023. That followed his trial on one count of conspiracy to commit crime abroad, namely the supply of class A drugs in Northern Ireland. He was sentenced at the same time to eight months' imprisonment concurrent following his guilty plea to procession of an identity document with improper intention. This renewal was not pressed orally by Mr Montgomery but it remains relevant to the 25-year sentence and we will refer to it in our judgment further below. The facts[5]At the start of the period covered by the EncroChat content which was central to the conviction and, no doubt, the guilty plea, Mr Terry was arranging for a quantity of cannabis to be collected by a representative of an Irish-based group to which he regularly supplied the drug. An undefined quantity of cannabis was collected from his business premises at a cafe in Wolverhampton on 31 March 2020. Some of the messages at this time suggested that Mr Kothiria was present at this hand over.[6]Shortly after that, Mr Terry began negotiations with one customer to import 17.5 kilograms of cocaine and 200,000 ecstasy tablets from the Netherlands and with another for a quantity of cannabis to be collected in England by Mr Kothiria.[7]On 4 April, Mr Collis travelled to Harwich and took the Ferry to the Hook of Holland. On 6 April he collected the 17.5 kilos of cocaine at a location in Rotterdam and brought it back to Wolverhampton. At the same time, Mr Kothiria was travelling to London on behalf of Mr Terry. He picked up just over 9 kilos of cannabis, together with a packing machine and brought them back to Wolverhampton. Mr Terry then organised the packaging of the drugs using the machine and on 6 April Mr Kothiria took the cannabis to Ireland and delivered it there.[8]On the morning of 7 April, Mr Khan travelled from Birmingham to Mr Terry's cafe in Wolverhampton and collected ten of the kilogram blocks of cocaine that Mr Collis had brought back from the Netherlands. Acting on instructions he then delivered 6 kilos of this to Luton and four kilos to Slough. That evening, Mr Collis then travelled to Ireland and later delivered the remaining 7.5 kilos of cocaine there. Conversations around that time revealed that Mr Terry was charging €1,300 for each kilo of cocaine delivered to Ireland and £1,000 for each collected in Wolverhampton.[9]In mid-April, Mr Terry was again negotiating to bring back cocaine from the Netherlands and was quoting a price of £2,000 per kilo to deliver to Ireland or £1,500 within the United Kingdom. Eventually that price was reduced to the previous figure of €1,300 per kilo and an agreement was reached. Once again, there was a discussion about transporting ecstasy tablets at the same time.[10]Separately, arrangements had also been made for Mr Kothiria to again travel to London and collect more cannabis. He drove south on 20 April returning with the load on the 21st. On the evening of 21 April, Mr Collis then travelled to the Netherlands via overnight ferry. On the morning of 23 April he collected another load of cocaine in Rotterdam and brought it back on the overnight ferry that night. On the morning of 27 April, Mr Collis travelled to Ireland to deliver that cocaine there. The next day, Mr Kothiria travelled separately to Ireland to deliver the cannabis that he had collected in London. He travelled to Ireland again with another load on 30 April. It was not possible to be clear of the amount of drugs transported in any of these trips but it was reasonable to infer that each was a multi-kilogram load.[11]Mr Terry complained of having to pay Mr Kothiria £1,500 to transport the load on 28 April but later used him for the job. On a later occasion Mr Terry again complained about having to transport only 4.5 kilos of cannabis in one load, a quantity which he said was not enough for him to make a profit once he had paid his driver. There were no complaints about either of the loads in late April, perhaps suggesting that each was bigger.[12]At the start of May, Mr Terry was organising another collection of cocaine in the Netherlands by Mr Collis. He told Mr Collis that there would be 19 kilos being brought back, of which 10 would be collected in the UK and 9 would be taken to Ireland. He said that he was charging £1,000 for each kilo.[13]On 10 May Mr Collis travelled to the Netherlands by overnight ferry and collected the drugs the following day, 11 May. Messages confirmed that in fact 18 rather than the planned 19 kilograms had been collected. Mr Collis then dropped 10 kilos in the United Kingdom and took the rest to Ireland.[14]Towards the end of May, Mr Terry was arranging to pick up a planned 18 kilos of cannabis in the United Kingdom and in the event Mr Kothiria only collected 4.5 kilos from Leicestershire on the afternoon of 28 May. He took the drugs to Ireland on the evening of 1 June. The use of EncroChat ceased sometime in June after criminals became aware that the system had been breached and eventually it was shut down. Evidence from WhatsApp showed that the applicant and Mr Collis carried on with their activities regardless.[15]On 31 July, Mr Collis travelled from Harwich to the Hook of Holland and confirmed with Mr Terry that it was "20 and pick up in Rotterdam". He arranged a location for the pick-up with Mr Terry and was provided with a password. On the evening of 1 August he confirmed that all had gone as planned and came back to the United Kingdom. On 4 August he travelled to Belfast in his van.[16]On 3 September Mr Collis again travelled to the Hook of Holland on the overnight ferry. Mr Terry sent him a location and a password. On 6 September Mr Collis travelled back from the United Kingdom and on the following day he travelled again to Ireland. Once there he had a number of discussions with Mr Terry about a planned rendezvous and handover.[17]Overall, during this period there were at least five importations of cocaine from the Netherlands, 17.5 kilos imported on 6 April, of which 10 kilos were supplied to Mr Khan and 7.5 kilos taken to Ireland, an unknown quantity imported on 23 April and then taken to Ireland, 18 kilos imported on 11 May of which 10 kilos was delivered to this country and 8 kilos to Ireland, 20 kilos imported on 1 August and then taken to Ireland and an unknown quantity imported on 6 September and then again taken to Ireland.[18]It was the Crown's case that the quantity involved was not less than 55.5 kilograms. In each of the two importations for which the quantity was unknown, if it was the same size as the average of the three where quantity was known (that would be 18.5 kilos) then the overall quantity would in fact be much greater: 92.5 kilos. Indeed, if each was the size of the smallest importation then the overall quantity would still be 90.5 kilos.[19]In respect of cannabis, it was the Crown's case that the total amount was not less than 14 kilos, an undefined amount being collected from the cafe on 31 March and 9.5 kilos collected in London on 4 April, repackaged and then taken to Ireland, an unknown quantity collected in London on 21 April, an unknown quantity taken to Ireland on 28 April, another unknown quantity taken to Ireland on 30 April and 4.5 kilos collected in Leicestershire on 28 May and then taken to Ireland. It is likely that the amount was significantly larger than 40 kilograms.[20]On the morning of 22 February 2021 a man called Lathian McCalla was stopped when his van was disembarking from a ferry in Belfast. There were three large metal fuel containers in the back of the van which initially seemed to be empty. On examination there was found to be a void between the outer shell of the container and the inner liner. In two of the containers this void just contained pieces of wood. But in the other there were 20 plastic-wrapped blocks of compressed powder. These were tested and found to weigh about a kilogram each and each containing 77% to 79% purity cocaine with a wholesale value of approximately £800,000.[21]It was the Crown's case that Mr Terry was involved in organising this. By reference to the timing of telephone contact, emails and WhatsApp messages between Mr Terry and McCalla, analysis of the movements of their mobile telephones, the evidence suggested that both men travelled on the afternoon of 21 February from the Wolverhampton area to the vicinity of a storage unit in Tipton called Unit B5 which Mr Terry was associated with, to pick up the fuel tanks which had the drugs concealed within them.[22]Later that evening, Mr McCalla confirmed to Mr Terry that he was on his way to the port. Mr Terry and Mr McCalla kept in touch. Mr Terry asked Mr McCalla at 9.46 pm how he was getting on and at 10.09 pm if he was yet on the ferry. Between those two messages Mr Terry told Mr McCalla to delete all his messages. Mr McCalla did so, but they were recovered during the investigation.[23]Having been unsuccessful in contacting Mr McCalla on the morning of 22 February, Mr Terry set about trying to dispose of the remaining empty fuel units as he now correctly suspected that Mr McCalla had been apprehended. By this stage, Mr Terry was under surveillance and was seen unloading the empty fuel containers that he had picked up from Unit B5. From there Mr Terry drove to a sandwich bar that he owned and shortly thereafter he was arrested.[24]Upon arrest Mr Terry was in possession of a UK driving licence in the name of Joseph Leo Ryan and three sets of keys for Unit B5. Police seized from another premises associated with Mr Terry two IBC fuel containers that were visibly identical to those recovered in Belfast in Mr McCalla's van. The 18-year sentence[25]Notwithstanding the fact that the sentence is not now being appealed, it is necessary to make some observations as the grounds upon which that appeal had been argued in writing overlapped with one of the grounds relevant to the 25-year sentence.[26]The sentencing judge considered the sentencing guidelines for the supply of class A drugs. He concluded as to Mr Terry's role as follows:
"You played, in my judgment, a leading role in organising and directing the storage and movement of 20 kilogrammes of cocaine with high purity and with a wholesale value of nearly £1 million, that is £800,000, from Wolverhampton to Northern Ireland for onward distribution and supply. This operation and your part in it had all the hallmarks of professional crime. You have a previous conviction for a similar matter in 2006 in Ireland when you were convicted of an offence concerning the movement of 10 kilogrammes of cannabis. It is right that I should say, because it is not merely trite, that cocaine is a dangerous drug that not only causes death but can cause misery and severe harm to health with all the social and criminal consequences of supplying and distributing it to vulnerable persons. Your role was an organisational one beyond mere management. Your role was extensive. You were connected to the premises where it can be inferred that the drugs were stored, concealed within the fuel containers, and then loaded into the van for transport. You obtained and paid for the fork-lift truck which was necessary for all of that to take place and did so well in advance of the actual loading of the drugs. You then recruited the driver who was to take the drugs to Northern Ireland and organised every aspect of his journey, including booking his ferry, taking him to the premises where the drugs were picked up and providing him with the address to which to deliver the load. After the collapse of the scheme, you took sole responsibility for attempting to dispose of evidence which could have been found at the premises where the drugs were loaded and indeed had keys to that unit when arrested."
[27]The single ground of appeal that had been advanced in respect of the 18 year sentence was that the judge erred in finding that Mr Terry had a leading rather than significant role. For the same reasons as given by the single judge in refusing leave, this was not reasonably arguable. The judge was best placed to assess Mr Terry's criminality, having heard all the evidence at trial. He was more than entitled to consider that a number of the leading role characteristics were present. These would include directing or organising the buying and selling on a commercial scale, having substantial links to and influence on others in a chain and the expectation of substantial financial or other advantage. Mr Terry must have been fully aware of the large scale of the operation. This is not a case of ‘some’ awareness which might be a marker in other cases of a significant role rather than a leading role.[28]Having properly identified the nature of Mr Terry's role, it is clear that the 18-year sentence of imprisonment was not manifestly excessive. The 25-year sentence The extension of time[29]Mr Terry seeks an extension of time of 268 days. This is a significant period. The brief justification for the extension originally given in the advice and grounds of appeal noted the need for Mr Terry to have instructed a new legal team and to raise funds to do so. The single judge, when referring the extension to the full court, indicated the paucity of information and intimated that it may be wise for Mr Terry to provide it. On the day before this hearing further information was provided by Mr Montgomery, counsel for Mr Terry. Mr Montgomery indicated that Mr Terry had originally obtained a negative advice in respect of the prospects of a successful appeal. Thereafter the family of Mr Terry had approached fresh solicitors and were able to put them in funds partially on 8 February 2024 and as to the remainder of 6 June 2024. It was then nearly two months until Mr Montgomery was briefed on 5 August 2024. Mr Montgomery indicated that due to the pressure of work and other commitments, as well as a period of ill-health, there was a delay before a positive advice and grounds of appeal were drafted on 29 September 2024. The appeal was lodged the following day.[30]On any view there was clearly a period of delay in June and July before Mr Montgomery was briefed which was long in excess of the period within which an appeal must be lodged for which there was no good reason. We will return to the question of whether or to what extent an extension of time should be granted in due course. The approach of the sentencing judge[31]The sentencing judge characterised Mr Terry's role as leading, describing him as the leading, controlling and principal role and beating heart of this conspiracy. The judge continued:
"When the rest of the country was observing strict lockdown and barely daring to go for a walk in a park, you were organising the movement of vast quantities of drugs across national borders. Multi kilogram loads of cocaine were collected in the Netherlands and imported to this country. Once here, the supply chain kicked in the dealers around the country or in the Republic. You were directing and organising the purchase and sale of large amounts of cocaine on a commercial scale. You had substantial links to and influence on others in the chain. In addition, you not only had an expectation of financial advantage but I am sure you achieved your goal. You are an experienced drugs exporter and importer with contacts in the United Kingdom and abroad. Your role was pivotal."
[32]The judge identified one aggravating factor as Mr Terry's prior conviction in Ireland for the possession with intent to supply a large quantity of controlled drugs in 2006. Mr Terry was sentenced to four years. He did not serve this time. Instead, he escaped from prison and fled to England where he has been living since and using different identities. The judge also identified the use of EncroChat, the sophisticated technology used to impede detection as a further aggravating feature.[33]Pleading on the first day of trial, Mr Terry was given in the sentencing judge's words a "modicum of credit" for his guilty plea. The precise credit was not identified. The judge recognised that Mr Terry was already serving an 18-year sentence for offending of an identical nature and that he therefore had to consider his overall criminality had the offending been sentenced together, bearing totality in mind. The judge took a starting point of 27 years and raised it to 28 years on account of the previous conviction. Applying the credit and mitigation, Mr Terry was given a sentence of 25 years. The grounds of appeal[34]Mr Montgomery, whose written submissions and, indeed, oral submissions today have been extremely helpful to the court, identified six grounds of appeal in writing as follows: 1. The starting point was far higher than that which should have been taken, having regard to the total quantities of drugs involved. 2. The judge erred in relation to the totality principle. 3. The judge fell into error by increasing the sentence on account of the November 2023 conviction for conspiracy to import cocaine into Northern Ireland. 4. The judge ought to have paid some regard to the fact that other than the November 2023 conviction, the only previous custodial sentence had been one of four years, a long time ago and was not in respect of class A drugs. 5. The judge ought to have determined that the role was significant rather than leading. 6. The judge ought to have expressly given 10 per cent credit for the belated guilty plea at the start of trial. It was not clear from the transcript what the exact level of credit had been afforded.[35]Of these grounds the single judge, whilst not seeking to constrain the full court, considered that grounds 1, 2, 5 and 6 were not reasonably arguable. They have nevertheless, in effective submissions, been pressed in Mr Montgomery's submissions today. We agree however with the view of the single judge.[36]Taking ground 5 first, for the reasons that we have already given in relation to the 18-year sentence, it is hopeless to suggest that the characterisation of Mr Terry as having a leading role is an error. The judge heard considerable evidence and his description of Mr Terry was entirely justified. He was the beating heart of the operation. In our view he was much more than what has been described as a classic middleman and a number of the relevant characteristics of leading role from the sentencing guideline are present and were specifically identified in the sentencing judge's remarks.[37]Turning to the starting point of 27 years, that is ground 1, we are not persuaded that this was, whilst substantial, arguably manifestly excessive. As the sentencing guideline points out, 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 offender's role.[38]Mr Montgomery, in his written submissions, drew the attention of the court to the case of R v Wraight [2021] EWCA Crim 1968 in which this court increased the sentence for Mr Wraight from 12 to 22 years. Mr Wraight had a leading role in a conspiracy involving a total of 120 kilos of cocaine. It appears that Mr Terry's defence counsel at the sentencing hearing wrongly suggested that the court in Wraight approved a sentence of 28 years before plea, rather than 22 as was the case. It is not clear from the sentencing remarks themselves, however, that this influenced the sentencing judge in any way. Moreover, the judge no doubt would have been cautious as to the use other cases can provide by way of any reliable or meaningful comparison. As this court has observed on previous occasions, if a comparison with other cases were to be attempted, it would need to reflect all the significant factors and not just, for example, the weight of drugs or the length of a conspiracy: see R v Hizam [2023] EWCA Crim 628 at [25]. In any event, we note that there are distinguishing features that demonstrate why the starting point in the present case would necessarily be somewhat higher than the sentence given in Wraight. Most significantly, Mr Wraight was specifically identified as being at the lower end of a leading role categorisation and still in a position of taking instructions from others. This is an important point of distinction and does not apply to Mr Terry in the present case.[39]Whilst we note the strands of personal mitigation that were before the court, and we have read Mr Terry's letter to this court expressing remorse, it also seems likely that the personal mitigation available to Mr Wraight was considered to be of more significance in that case than that which is available to Mr Terry here.[40]For these reasons, we conclude that a starting point of 27 years before consideration for Mr Terry's previous offending is not manifestly excessive.[41]As for ground 2, it is plain from the sentencing remarks that the judge was well aware that his task was to consider the totality of Mr Terry's offending, both that which he was sentenced for in January 2023 and the earlier offending during the period of March to September 2021 which fell for sentencing in December 2023. Put another way, what the sentencing judge was right to ask himself was what further sentence should be given to Mr Terry in addition to the 18 years he was already serving in respect of the 20 kilo export which had taken place on 21 February 2021. The suggestion, advanced before the sentencing judge, that the further criminality could be marked by the addition of a mere number of months is not and was not remotely arguable, and Mr Montgomery did not in oral submissions suggest otherwise. There was no other error in principle on the behalf of the judge in his approach.[42]As to ground 6, the sentencing judge deducted a total of three years to account for both the credit for plea and for mitigation - the credit he described for plea as being ‘a modicum’. Given that the personal mitigation available to Mr Terry was not particularly significant, it is likely that Mr Terry was given perhaps one year to 18 months for pleading guilty on the first day of trial. This represents a three to five per cent deduction when set against the 28 year sentence. Whilst it has been submitted that Mr Terry should have been given a 10 per cent reduction, it is, firstly, important to note that the relevant guideline provides that 10 per cent is the maximum which might be afforded to a defendant pleading guilty on the first day of trial. It is not an automatic entitlement. The appropriate credit is a matter for the sentencing judge when taking account of all of the circumstances of the case.[43]Secondly, in circumstances where the judge was considering the totality of Mr Terry's offending, it is also important not to lose sight of the fact that Mr Terry did not plead guilty in respect of the February 2021 offence. Giving 10 per cent credit against 28 years would undoubtedly overstate any credit due. Expressed a different way, the judge might have considered giving a 10 per cent credit against the additional time to be served, in this case the 10 year difference between 18 years and 28 years. This would mean a credit of one year. This is in the region of the credit Mr Terry in fact received.[44]We therefore do not consider the provision of a credit smaller than 10 per cent (measured against 28 years) to be an error in principle and has not led, on the facts of this case, to a manifestly excessive sentence.[45]It is argued pursuant to ground 3 that the judge fell into error by increasing the sentence on account of the November 2023 conviction for conspiracy to import cocaine. Ground 4 is a related ground. Under this ground it is argued that the judge ought to have paid some regard to the fact that prior to November 2023 the only previous custodial sentence was that of four years, a long time ago.[46]We do not however read the sentencing remarks as suggesting any such errors on the part of the judge. As we have already described, it was for the judge to consider the totality of offending and he did this by imposing a single sentence which ran concurrent to the sentence Mr Terry was already serving. The February 2021 offence was not taken to be a previous conviction aggravating the sentence. It was, rather, part of the overall offending which the judge was required to have regard to when sentencing in December 2023. The judge did, as he was entitled to, consider that Mr Terry had a previous conviction which was relevant and which was an aggravating factor. Whilst it was in 2006, some time ago, it was also for the supply of drugs on a serious scale. It was marked by a four year sentence. That Mr Terry had a previous conviction for the same type of offending was plainly an aggravating feature. It was indeed an ambitious submission to suggest, as it had been in writing, that the intervening period during which Mr Terry had no convictions was a mitigation of any significance. There was therefore no error in principle in the judge's approach to Mr Terry's previous convictions or the extent to which the 2006 conviction aggravated Mr Terry's offending.[47]Finally, whilst the sentencing judge applied 25 years to each count, this was an unlawful sentence in relation to count~6, in respect of the importation of a class B controlled drug. The maximum sentence for the substantive offence of importation of a class B controlled drug is one of 14 years' imprisonment. We do not consider however that this error influenced the overall assessment of the totality of Mr Terry's criminality, although an unlawful sentence must be corrected.[48]We therefore allow an extension of time and grant leave to appeal in this limited respect. We allow the appeal and quash the sentence of 25 years' imprisonment on that count alone and substitute one of 14 years' imprisonment on count~6. That is to run concurrently with the other counts and the 18 years' imprisonment that Mr Terry was already serving. Save to this extent, however, we do not allow the extension of time and we dismiss the appeal. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London, WC2A 1JE49. Tel No: 020 7404 140050. Email: rcj@epiqglobal.co.uk