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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Lees & Anor, R v [2007] EWCA Crim 1152 (03 May 2007) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2007/1152.html Cite as: [2007] EWCA Crim 1152

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IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice The Strand London WC2A 2LL
		3 May 2007

LORD JUSTICE RIX:

1. On 4 August 2004, the police conducted a search at a commercial unit known as "Sean's Orient" at Field House Industrial Estate in Lancashire. There they discovered a container of jeans hidden within which were 470,000 ecstasy tablets (a Class A controlled drug), and further quantities of ecstasy paste, as well as very large quantities of amphetamine (a Class B controlled drug). That discovery led to the arrest of the lessee of Sean's Orient, a man called O'Brien, and, because of information which he then gave to the police, the further arrests of William Lees and Peter Gianassi. All three were charged with conspiracy to supply the ecstasy and amphetamine.
2. At the subsequent trial held at the Crown Court in Liverpool before His Honour Judge Roberts and a jury, O'Brien pleaded guilty and gave evidence for the Crown. Lees and Gianassi were convicted on two counts charging them respectively with conspiracy to supply the ecstasy and the amphetamine. They were sentenced to terms of imprisonment of 25 years' and 17 years' imprisonment respectively on the ecstasy count, and concurrently to thirteen years and ten years respectively on the amphetamine count, a total sentence therefore of 25 years and 17 years respectively. O'Brien was sentenced to a total of eight years' imprisonment. These are now the appeals against sentence of Lees and Gianassi, leave having been given by the full court.
3. The trial judge concluded that Lees had been the major player in both conspiracies. He had contacted O'Brien and identified Sean's Orient as an ideal staging point for the importation of drugs from Holland. He had organised the delivery of the goods to Sean's Orient. His position was aggravated by his previous convictions. On 30 November 2000, he had been sentenced to a total of twelve years' imprisonment for 23 offences which related to the evasion of duty, but in particular (reflecting the twelve year total) to a previous importation of drugs on that occasion into Northern Ireland. The drugs in that case, however, had been a Class C drug (cannabis). He had only recently been released from that sentence at the time of the instant conspiracies. While the judge accepted that there might well have been someone further up the hierarchy than Lees and that he was therefore not right at the top, he regarded him as very near the top.
4. As for Gianassi, the judge said that he was not a top player, but that he had nonetheless played a significant role as Lees' right-hand man. He did a lot of running around when the conspiracy was being put together. Lees trusted him to be present upon the arrival of the drugs, even if he had, as it turned out, left the scene twenty minutes before their arrival. His role involved ensuring that the drugs were safely stowed at Sean's Orient and then supervising their onward transmission to Liverpool and London. Although he had previous convictions -- indeed 22 convictions for 51 offences stretching all the way back to 1974 -- there had been nothing since 1989 and no drug offences at all. In those circumstances the judge generously treated him as a man of effective good character.
5. We mention O'Brien's sentence very briefly because in the material before us there was a ground of disparity, although together with other similar matters raised on Gianassi's behalf in writing (but not in court this morning), they have taken a back seat. Indeed, nothing whatsoever has been mentioned about those other matters by Mr Smith on behalf of Gianassi. O'Brien pleaded guilty at an early stage and assisted the prosecution. The judge treated him as being at the same level as Gianassi. The judge awarded him discounts both for his early plea and for his assistance to the police and sentenced him to a total of eight years' imprisonment. We see nothing in this sentence to raise any glimmer of an argument on disparity.
6. In the course of his sentencing remarks the judge mentioned some of the statistics of the conspiracies. The pure weight of the drugs imported at 100 per cent purity were 36.6 kilogrammes of ecstasy and 87 kilogrammes of amphetamine. The judge mentioned those figures at the end of the first paragraph of his sentencing remarks. That pure weight at 100 per cent is a calculation which numerous sentencing authorities such as R v Aranguren (1995) 16 Cr App R(S) 211 and R v Warren and Beeley [1996] 1 Cr App R(S) 233 have emphasised is the true comparator for sentencing purposes and in the course of making that emphasis have contrasted that with the varying, market orientated, street value of drugs which therefore is not and cannot be made the critical sentencing factor.
7. However, the judge also mentioned other statistics such as the number of ecstasy tablets (470,000) and the gross weights involved. On matters of detail the judge may have made some errors in dealing with those gross figures, but that does not matter and no complaint is made of it for the purposes of these appeals. The agreed figures are 470,000 tablets and 70 kilogrammes of ecstasy paste of various purities, which on the prosecution evidence might have made something between 50,000 and 100,000 further ecstasy tablets, and 200 kilogrammes of amphetamine paste of various purities.
8. The judge also mentioned values. He mentioned street values on the prosecution evidence of £1.7 million for the ecstasy and £32 million for the amphetamine. He said that he noted what had been said to him about wholesale values being "very much less" and that the defence had put the street value of the drugs to something in the order of £21 million. But, as he remarked, on any view there were considerable quantities of drugs worth many millions of pounds at street value and those drugs would have, he pointed out at the end of this passage of his sentencing observations, generated massive profits for those involved with supplying them.
9. How great those massive profits potentially were (whether the prosecution or the defence evidence of street value is taken) is indicated by what are now through the confiscation proceedings the agreed wholesale value of the total drugs involved, a figure of only £283,000. At the time of sentencing, the defence values of the ecstasy was £2.1 million street value and £142,000 wholesale value.
10. We observe, as has been pressed upon us in succinct and helpful submissions by Mr Marks QC on behalf of Lees, that the street values were very much slanted towards the amphetamine component, as the figures which we have mentioned clearly indicate, and as the judge clearly had in mind when he distinguished between the prosecution figure of £1.7 million street value for the ecstasy and £32 million for the amphetamine. Towards the end of his sentencing remarks the judge said that in sentencing both Lees and Gianassi he had derived considerable assistance from this court's decision in R v Van Tattenhove and Doubtfire [1996] 2 Cr App R(S) 91. In that case this court dealt with similar quantities of ecstasy tablets, namely 493,000, and rather larger amounts of amphetamine, namely 146,000 kilos at pure value. A sentence of 25 years was reduced to 20 years on the basis that the appellant was not at the top of the organisation, but was someone more than a foot soldier; he was therefore someone in between a top organiser and a foot soldier. If he had been at the top, this court remarked that on the facts of that case a sentence of between 25 and 30 years would have been appropriate after a trial.
11. Against that sentencing background the submissions of Mr Marks, which Mr Smith on behalf of Gianassi adopts as his primary (and in effect as his sole) submission this morning, concentrate on a point which had admittedly worried this court when it gave leave for this appeal on a renewed application. That was whether the judge had given too much emphasis and had been too much influenced by the street values of the drugs concerned. Mr Marks submits that is what happened. He relies upon the judge's observations to which we have drawn attention and in particular the observation that, however the matter is looked at, there were involved considerable quantities of these drugs worth many millions of pounds at street value.
12. We do not accept the submission that the judge was improperly over-influenced by reference to these street values. The judge had in mind the critical factor of the pure weight of the drugs, which he mentioned. He emphasised his reliance on the Court of Appeal decision in Van Tattenhove and Doubtfire, which demonstrates a sentencing exercise in line with that process of sentencing. In any event it was not irrelevant for him to mention the street values of the drugs for the purpose of making the point, which he made in his observations, about the massive profits which those drugs could generate. That is a matter which, although not critical to the sentencing exercise, is relevant to it, as is indicated not only as a matter of common sense but also by the fact that the Sentencing Guideline Council's Guidelines mention as a factor indicating a higher culpability the high level of profits available from an offence. It is a factor to which the cases refer.
13. Our conclusion about Mr Marks' first main submission is confirmed for us by our consideration of his second main submission, which is that if a broader line of sentencing authority is considered beyond that of Van Tattenhove and Doubtfire, then it can be seen that the judge's sentencing was excessive, albeit, Mr Marks accepts, not by very much, because in any event he has told this court that there could be no complaint of a sentence upwards of 20 years; but he says that a sentence of 25 years (being the longest sentence ever handed out for a count involving ecstasy) is still excessive. For these purposes he has taken us to a range of cases concerning Class A drugs importation, beginning in the 1990s with R v Richardson (1994) 15 Cr App R(S) 876, R v Warren and Beeley and R v Main and Johnson [1997] 2 Cr App R(S) 63, and ending more recently with Attorney General's Reference No 2 of 2006 [2006] 2 Cr App R(S) 617 and Attorney General's References Nos 117 and 118 of 2005 [2007] 1 Cr App R(S) 106.
14. In our judgment, however, these cases, although the facts vary between them and the present appeals, nevertheless support rather than undermine the judge's sentencing exercise. For instance, in the earlier case of Richardson this court upheld a sentence of 25 years after a trial, albeit in that case there were three separate conspiracies -- two involving cocaine and one a huge quantity of cannabis, and the quantities were admittedly very much more considerable than in the present case. Richardson was described as "an important member of the team" (at 880), but not in terms that put him at or near the top. In Main and Johnson a few years later, a sentence of 24 years was upheld in a case involving 1.3 million tablets of ecstasy. Mr Marks is entitled to say that that was more than twice the quantity here. The role ascribed was that of head of the organisation in this country. This court said that there was no justification for interfering with the sentence.
15. Coming more recently to Attorney General's Reference No 2 of 2006, a sentence of sixteen-and-a-half years was there raised to one of 20 years, or, as the court emphasised, what would have been a sentence of 23-25 years at trial -- a case which Mr Marks frankly accepts does not help him, especially as it involved lower quantities, namely some 15 kilos of heroin, albeit he points out that there were two separate importations three months apart in that case. The offender there was ascribed a ringleader role.
16. In Attorney General's Reference Nos 117 and 118 of 2005, the quantities were again lower, 14.5 kilos cocaine in total, albeit there were aggravating features such as six separate importations, a conspiracy over a year, and the recruiting of couriers, one of whom had unfortunately died as a result of swallowing cocaine. In that case this court raised the sentence of six years to 20 years. The court said it would properly have been in excess of 20 years on sentencing after trial. The offenders there were significantly involved, but not described as top players.
17. We come back to Van Tattenhove and Doubtfire, the case which influenced the judge, and which has been relied on in other cases too. For quantities which were similar to those in the present case, especially so far as the ecstasy was concerned, this court there emphasised that, depending upon the precise role of a defendant in such a case, sentences could properly range from 20 up to 30 years. In the present case, as Mr Marks accepts, Lees' role was higher in the hierarchy than those of the appellants in that case. He was regarded by the judge not necessarily as the "Mr Big", but at any rate as a "Mr Big" -- someone close to the very top (albeit not quite at it). In our judgment, he was entitled to impose a sentence of 25 years. We do not consider it to be manifestly excessive. His sentence was within the sentencing range indicated by the cases which we have mentioned. This underlines and supports our conclusion that, despite the judge's mention of street values of the drugs involved, he was not over-influenced by them. It will be observed that these are references to street values in all or most of the cases to which we have referred.
18. Although it is not a point which is critical to our reasoning on this appeal, we also consider that the total gravamen of the two counts involving the amphetamine as well, in terms of sophistication, organisation and the stakes involved, is something which could enter as an aggravating feature into the sentencing for the ecstasy. That was the position in some of the underlying cases as well, in particular Van Tattenhove and Doubtfire.
19. Mr Marks also raised two further points, not in his grounds of appeal. His first is that Lees, having been sentenced under the regime existing before the Criminal Justice Act 2003, will not necessarily benefit from the early release provisions at the half-way point of his sentence. However, it is appropriate to refer to one only of the features of the new Criminal Justice Act 2003 regime. Lees has received a sentence tariffed on the pre-Criminal Justice Act 2003 regime and cannot complain. The second new point is that if, as for family reasons he would otherwise hope to do, Lees serves his sentence closer to his home in Ireland, he will fall subject there to a parole eligibility rule which might lead to his serving three-quarters of his sentence. However, the factual basis of this submission is uncertain, and no notice of the point has been given to the Crown for investigation. It was not strongly pressed, and it does not affect our conclusion.
20. We consider that it is unnecessary to go into further details of the other matters raised in Mr Smith's written advice on behalf of Gianassi. As secondary matters not particularly relied on today, we can assure Mr Smith and the appellant Gianassi that we have taken them into account.
21. Having seen no reason therefore to conclude that the sentence of 25 years in the case of Lees was manifestly excessive, we arrive at the same conclusion in the case of the 17 year sentence of Gianassi, taking account, as the judge did, of his important but significantly lesser role.
22. For these reasons these two appeals are dismissed.

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