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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Pitts & Ors, R. v [2014] EWCA Crim 1615 (31 July 2014) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2014/1615.html Cite as: [2014] EWCA Crim 1615

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM PRESTON CROWN COURT
H.H.J. BEECH
T20127490/7500/0772/7605/7816/20110316

		Royal Courts of Justice Strand, London, WC2A 2LL
		31st July 2014

Lady Justice Macur DBE :
 


1. All appellants, save for McComb have leave to appeal against sentence from the single judge. The application for leave by McComb was referred to this Court by the Registrar. In light of the similar issues raised, we grant leave.
2. The appellants were all sentenced in respect of their involvement in drugs offences, and in some cases peripheral criminal activity, on 31 October and 1 November 2013 following pleas entered at a significantly earlier date. The Prosecution opened the case for sentence on 27 August 2013. Pleas in mitigation were made on the two days following and thereafter, intermittently, up to approximately two weeks before sentences were handed down. In addition to these appellants, the judge sentenced twelve other defendants on those days, they being identified in the same undercover police operations investigating the importation and supply of class A and B drugs, primarily in Merseyside and Preston.
3. We have little doubt that the number and scale of conspiracies and the varying degrees of criminality indicted against the appellants would create a complex sentencing exercise for any tribunal. Accommodation of Counsel's availability over several months led to a disrupted process and delayed outcome. As it transpires it has also led to unfortunate circumstances in at least two cases where mitigation made in the absence of other defendants or their counsel has gone unchallenged and has been treated as evidence of aggravating factors against them. Whilst seeking to assist Counsel, the judge created difficulties for herself in permitting so disjointed an approach and consequential significant delay. Unhappily, we have concluded that thereafter her articulated sentencing exercise was either flawed and/or notably inconsistent between some appellants as to underline the need for this court's review. Mr Medland QC, who appears at the direction of the single judge on behalf of the respondent does not seek to justify the stated mechanism adopted by the judge to reach the outcome she did but contends that the sentences achieved thereby are not necessarily wrong in principle or manifestly excessive
4. The prosecution did not seek a trial in relation to any of the indictments relevant to this appeal. It follows that (i) the prosecution must be assumed to have regarded the defendants to have offered/ entered pleas which amounted to a combined sufficiency to provide the judge with adequate sentencing powers to meet the justice of the case and to thereby dispense with a hearing which would be costly and last for several weeks if not months. In some defendants' cases the effect of the actual pleas tendered presented a different complexion upon what otherwise would have been opened by the prosecution at trial to be their position within the conspiracies' hierarchy. The certain stance to be taken by the prosecution at trial as indicated in their case summary and opening note for trial should have been subject necessarily to reconsideration by reason of the varying combinations of defendants pleading to part only of the indictment against them. We are not satisfied that this occurred in all cases.
5. In addition, written bases of plea were submitted in the majority of cases. In the main, the prosecution agreed them. Some were said to be subject to "further discussion" between counsel. However, during the various mitigations heard, and apparently on the few occasions when the prosecution indicated that they did not accept some part of the basis of plea, the judge gave no indication that the difference would inform sentence and that, if persisted in, a "Newton" hearing would be required. Whilst the judge was therefore at liberty to disregard the implausible and that which was in fact mitigation disguised as a factual distinction to be contended, she was not entitled, without more, to ignore the bases of plea if the same were pertinent to sentence. We regret that the sentencing judge appears to have disregarded some of the undisputed and tenable bases of plea, and at least in some instances, to have proceeded as though she had heard evidence at trial or during a Newton hearing to contradict them.
6. We bear in mind the parameters of the definitive sentencing guidelines on drug offences which do not explicitly encompass the offences of conspiracy to import, supply or produce drugs. We see no error in the judge seeking to derive some assistance from relevant entry points into sentencing categories by virtue of the relevant weights of drugs recovered subject to the recognition that the criminality of the conspiracy is not necessarily thereby confined. That which must also be considered is the degree of participation in the illegal agreement and its scope. We accept that the broad brush of defining leading, significant and lesser roles may be an helpful indicator as to participation but these categories will themselves likely be subject to further refining on the facts. In summary, in sentencing for the conspiracies indicted, caution should be exercised against a slavish following of the guidelines on the basis of weights of drugs discovered at the conclusion of a surveillance operation. R v Khan and others [2013] EWCA Crim 800 and R v Welsh [2014] EWCA Crim 1027 refer.
7. In this context it is also relevant to observe that all but two of the appeals before us involve M-Kat or mephredone, a class B drug. This and its associated derivatives are not covered explicitly by the sentencing guidelines. Dispute as to the correct comparative was determined by the judge on the basis of hearing submissions on an expert report prepared by Professor Cole from the Department of Psychological Sciences at Liverpool University, dated 8 May 2013 but only produced by the prosecution and served on the defence on the 27^th August 2013. It should be noted that no Counsel sought an adjournment to seek another expert opinion which is somewhat surprising in that the difference in comparison of the drug with amphetamine or cannabis was highly significant to sentence. That is, the weight ratio entry point into the sentencing categories for the substantive offence is 10 to 1.
8. That said, we do consider that the judge was bold in reaching her determination in the face of dispute – however mildly advanced. The very late service of the report by the Prosecution was inexcusable. There was no recent authority touching upon the point, and the case of AG's Ref. (nos. 15, 16 and 17 of 2012) [2013] 1 Cr App R (S) 52, supported an approach which, giving the benefit of the doubt to the defence, adopted the most favourable comparison for a drug not referred to within the then guidelines to cannabis. Fortunately there is subsequent guidance provided by this court in R v Brown [2013] EWCA Crim 1726 which appears to us to validate her decision on the correct comparative to draw.
9. Only Mr Csoka QC on behalf of Bowden has sought to argue any point on this issue before us at appeal. Other Counsel adopted the comparison and had not attempted to obtain other evidence, although few had been aware of the recent authority until immediately before the hearing. We acknowledge however that in the majority of cases, the combination of other offences charged would have diluted the significance of the difference.
10. Mr Csoka has conceded that from a pharmaceutical perspective the court would have been bound to accept the Advisory Council on the Misuse of Drugs report "Consideration of the cathinones" as presented on 31 March 2010. However he argues that it is not necessarily to be followed without critical analysis. He seeks to rely on paragraph 4.6 which suggest "self reported dosages range from 5mg or less (for MDPV) to 200mg of more (for mephredone) , with some mephrodone users reporting 're-dosing' (bingeing) to prolong the euphoric experience, leading to 1 – 2 g being consumed in a session." The range of dose between the two variants he argues suggests 40 fold potency for MDPV which suggests a danger in treating various derivatives as equals. He avers that it is not for this court to determine how pernicious a drug is to be regarded. Mr Medland refers us to paragraph 9.3 which, headed "Control and Regulation" states, "The ACMD consider the harms associated with mephredone and the cathinones are commensurate with the amphetamines." This, we conclude, justifies the weight comparator as entry point into the guidelines to be rightly determined as amphetamine and not cannabis. As the judge rightly found, the guidelines make clear that the degree of purity is not to be taken to influence weight either by upward or downward adjustment.
11. We are also satisfied that the judge was entirely justified in drawing inferences from the available and undisputed evidence as to discarded packaging and presence of a mixing agent commonly used to 'cut' the substance to arrive at the amount of mephredone which had recently passed through the Back Ashburton Road unit. She was also entitled to conclude that the unadulterated methephrone was of high purity which constituted an aggravating feature of the offence.
12. The judge indicated 22 January 2012 as a cut off point for 25% discount to be awarded in respect of guilty pleas. In the circumstances, this was not an ungenerous concession. We intend to abide by that indication as we do in those occasions where she adjudged the plea to have been entered at the first opportunity. However, we have not adopted her additional reductions for plea when made. Remorse is a factor recognised by the definitive sentencing guidelines for drug offences as capable of being a personal mitigating factor. It does not, however, increase the credit to be awarded for plea.
13. The majority of appellants had been remanded in custody prior to sentence. Almost to a man they produced certificates of attainment and prison reports spoke to their good behaviour. The judge adopted an inconsistent approach in the credit she afforded for this factor between the co-accused and prompts a complaint from the like of Pitts that he committed no offences on strictly regulated bail and so should receive the same credit. For our part, we see no reason to differentiate between those remanded on bail or in custody. The fact of their "good behaviour" post arrest and before sentence is entirely neutral. Misconduct in prison or when at liberty reduces any likely pleas of genuine remorse or contrition.
14. The lead indictment charged between 1 December 2011 and 12 July 2012 : a conspiracy to supply cocaine (Count 1); conspiracy to supply methcathinone or its derivatives (Count 2); conspiracy to supply amphetamine (Count 3), conspiracy to supply cannabis (Count 4) and, between 1 April, 2012 and 12 July, 2012 importation of MCat from China into the UK.(Count 5)
15. BOWDEN pleaded guilty to Counts 1,2,3 and 4 following an unsuccessful claim of abuse of process. He was sentenced to a total of 15 years. WATERS was re-arraigned on 22 January 2013 and pleaded guilty to counts 2, 3 & 5. He was sentenced to a total of 10 years 10 months imprisonment. ROOKS pleaded guilty to counts 2, 3 and 4 on 20 November 2012. On 22/1/2013 he was re-arraigned and pleaded guilty to count 1. He was sentenced to a total of 10 years. HARDING pleaded guilty to counts 5, 7 - possession of criminal property namely £3,500 in cash - and 8, possession of false identity documents namely a UK passport and a driving licence on 26 October 2012 . There were other indictments against him referred to hereafter. He was sentenced to a total of 9 years 8 months. McCOMB pleaded guilty to counts 1,2,3 and 4 on 26 October 2012. He was sentenced to a total of 6 years 9 months. MURPHY pleaded guilty to counts 1 and 3 on 16 January 2013. He was sentenced to a total of 6 years 3 months. PITTS pleaded guilty to counts 1 and 3 on 22 January 2013. He was sentenced to a total of 5 years 8 months. McDONALD pleaded guilty to count 2 on 22 January 2013 He was sentenced to a total of 4 years 1 month imprisonment. BOOTH pleaded guilty to count 5 on 22 January 2013. He was sentenced to 2 years imprisonment. KNIGHT pleaded guilty to another indictment involving Harding in relation to conspiracy to supply methcathinone or its derivatives between 1 May and 22 August 2012, possession of a class A drug namely MDMA, possession of false identity documents with intent and possession of articles for use in frauds. He was sentenced to a total of 4 years 6 months.
16. The facts: On 8 December, 2011 police came upon the dismantling and removal of what had obviously been a cannabis factory in industrial premises on the Halliwell Industrial Estate, Bolton. The premises were posing as a wheel repair/replacement business. A Sprinter van, on loan to Bowden, was stopped on the estate . In the rear of the van was a quantity of cannabis cultivation equipment including circuit boards, fans and lighting. In the unit police found a hydroponics system, silver foil lined walls and more cultivation equipment. The electricity supply had been bypassed and a total of 100 root balls of cultivated cannabis plants were seized from the van and the unit.
17. In the lead up to 8 December there had been regular phone contact between the driver and passenger in the van, Bowden and Rooks and a meeting had taken place between the van occupants and Bowden. During the morning of 8 December there was contact again between them and Bowden and another. Following their arrest Bowden made repeated attempts to contact them before stopping using the phone he had used up to that date.
18. On 13 January, 2012, Unit 17 in Back Ashburton Road, Blackpool was searched. The unit was being used as a drug factory/packaging unit for the commercial distribution of mephedrone and amphetamine by the organised crime group. It was also being used in relation to cocaine. That day Bowden was seen to attend the unit and then another in Leamington Road. When the police raided the Back Ashburton Road unit they found 24 ½ kilos of mephedrone with a street value of between £240,000 and £360,000; 1.2 kilos of amphetamine at 12% purity with an estimated street value of £12,000 and a smaller quantity of cannabis with a street value of £453. There were electronic scales which bore residues of cocaine. The unit was being used to store, produce and package drugs. Amongst other items found was a large quantity of used methedrone packaging, 100 empty clear plastic bags, 11 food saver bags and 3 ziplock bags which were all similar in size and type to those bags already containing mephedrone in the unit. The bags containing mephedrone weighed about 1 kilo each. The estimated value of the mephedrone which had passed through the unit was between £1.25m and £1.85m.
19. The police then searched Leamington Road where, in the loft space of the garage, they found several black plastic bags containing 2 ½ kilos of skunk cannabis with a probable street value of £24,700. Bowden's fingerprints were found on the bags.
20. Following the police search and seizure operation at both premises, Bowden was in close contact with McDonald who in turn was in close contact with McComb and to some extent with Harding. The first direct contact between Bowden and McDonald was on 14 February and became more frequent with time. Cell site evidence showed that meetings took place between Bowden and McDonald and McDonald and McComb in the Fylde and Merseyside areas.
21. On 23 March, 2012 Bowden and McComb met close to Junction 3 of the M55 where McComb handed over a package. Subsequently the police stopped Bowden who drove away at speed and a pursuit took place during the course of which Bowden threw the package given to him out of the car window. Bowden was eventually stopped and arrested. Police recovered the package which contained mephedrone. A search at McComb's address subsequently uncovered 11 ½ kilos of amphetamine, 1 kilo of cannabis and ½ kilo of cocaine.
22. There followed a flurry of phone calls between McDonald and McComb and Harding and then with Bowden. Meetings took place between Bowden and Waters. Telephone activity continued between Bowden, Waters, Rooks, McDonald, McComb and Harding and meetings took place.
23. On 2 April, 2012 there was considerable telephone and text traffic between Pitts and Bowden and in the evening Pitts was observed driving his van to a restaurant where he met Bowden outside. In the next four days Bowden and Pitts contacted each other by telephone 19 times.
24. Leading up to 5 April, 2012 considerable contact took place between Bowden and two Dutch telephone numbers and also between Bowden and Rooks and an HGV driver, Wilde. Rooks provided Wilde with a car which he then used to collect cocaine from an address in Manchester. When stopped Wilde had in his possession 4 kilos of cocaine with a purity of almost 90%. Once cut it would have had a value of £580,000. Following Wilde's arrest Bowden was in contact with the two Dutch numbers and Rooks was in contact with Bowden. Rooks then 'dropped' the telephone he was using. Waters then dropped his telephone and started using another one. Bowden then dropped his telephone.
25. On 13 April, 2012 there was considerable telephone contact between Bowden and Rooks, Bowden and McDonald and McDonald and McComb. On 16 April Rooks met up with McDonald in the Merseyside area. McDonald's basis of plea was that Rooks met him to pay a drug debt of £3,800 owed by Bowden. After this meeting both men were stopped by the police. McDonald was found to have £3,800 in the boot of his car and Rooks had £345 cash on him.
26. On 31 May, 2012 a meeting took place between Pitts and Rooks in a car park. Bowden was heavily involved in the background telephone activity around this event. Pitts drove to the Collingwood Hotel in Blackpool and entered carrying a bag. He left a few minutes later, with the same bag, and was joined by Murphy. There was further telephone activity whilst Pitts and Murphy were in the hotel. Pitts and Murphy left in a car. When stopped, police found 11.4 kilos of amphetamine at 12% purity with a street value of £115,000 in the boot of the car together with 490 grams of cocaine with a street value of £19,600. There was also a separate bag of cocaine weighing 1.42 grams.
27. An associated storage unit was searched and found to contain a total of 3.15 kilos of amphetamine in the chest which bore the DNA and fingerprints of both Pitts and Murphy on the wrappings and on plastic gloves found with the bags. The street value of the amphetamine was £31,000. Telephone activity preceding and during this incident involved Bowden and Pitts, Rooks and Murphy.
28. On 1 June Rooks was involved in a drugs supply following considerable telephone activity between Bowden and Pitts and Rooks and Bowden. Rooks handed over a large plastic tub labelled creatine in a pub car park. The recipient was stopped by police and the tub was found to contain 266 grams of mephedrone with a street value of £5,300.
29. In February, 2012, Harding was on bail in connection with the 'Winchester' indictment, referred to below. He then moved from Hampshire to Blackpool and began using the name Glenn Knight. He knew Hamza and that Hamza and Waters knew each other and in turn Booth and Waters knew each other. A great deal of calls and text messages passed between them. Harding organised shipments of mephedrone from China. He did this on behalf of Waters through Hamza.
30. Booth facilitated the importation of mephedrone by the use of his address for deliveries using false names and also by using the address of a friend of his wife. The first delivery was on the 19 April. There was considerable telephone contact between Booth and Waters and some with Hamza leading up to the delivery and once it had been delivered. Booth notified Waters that the delivery had arrived. That package contained 1.2 kilos of mephedrone. The next delivery was on 2 May. It was found at Booth's address when subsequently searched. A second delivery to that address took place later in May, again in a false name and again attended with the usual flurry of telephone contact between the conspirators.
31. On each occasion when packages were expected, Hamza would track the packages and was in contact with DHL about the progress of deliveries, keeping Waters informed. Harding also tracked deliveries.
32. On 24 April there was contact between Waters and Taylor and Bowden and Taylor. Taylor attended Waters' address as did Booth. Bowden had contact with Bull and Farram as did Waters. Later that day Waters supplied them with 2 kilos of mephedrone
33. Harding and Knight (Indictment T20127816). Harding pleaded guilty to conspiracy to supply methcathinone or its derivatives between 1 May and 22 August 2012. Knight's pleas are referred to above. On 14 July, 2012 the UKBA intercepted a DHL package destined for 'Tyler Hewitt' at Wrexham Self-Store. It contained 2 kilos of mephedrone. The package was substituted for another by the Border Agency and allowed to be delivered where it was collected by Knight. Knight had used the name Tyler Hewitt when renting the self storage facility. Five parcels were received but as a result of Knight falling into arrears with his rent no further packages were released to him by the unit until payment was made and he was then arrested A search of his car revealed five tablets found to contain MDMA, £2,000 in cash, two counterfeit driving licences in the names of Ryan Evans and Frank Knight. Also found were numerous utility bills and bank statements in the false names of Evans and Knight. A number of mobile phones were seized from him along with documentation and packaging showing that he had rented a number of storage facilities in different names. Six further packages were intercepted addressed to the various aliases. One was found to contain 1 kilo and two to contain 2 kilos of mephedrone.
34. When Harding's address was searched his iPad revealed a sophisticated operation of commercial importation of mephedrone. Over £200,000 had been paid into an account in the name of Shiva Lifestyles in Northern Ireland. That account then paid various suppliers in China for the mephedrone which was then shipped and evidence indicated that 66 packages had been sent in this way. The minimum weight of mephedrone in count 1 being 66 kilos; the prosecution case being that it was more likely 80 kilos.
35. Harding (Winchester Indictment: T20110316) pleaded guilty to counts 1, possession of a controlled drug of Class B with intent to supply, 2, possession of a controlled drug of Class C with intent to supply, 3, possession of a controlled drug of Class C with intent to supply 4 possessing criminal property and 14 converting criminal property. In 2010 he owned a business in Basingstoke which purported to sell legal highs on the internet. On 26 November, 2010 his premises were searched and various bags which contained mephedrone were found. Also contained in those bags were TFMPP, a Class C drug and BZP another Class C drug. The total weight of the Class C drugs was ½ kilo When he was arrested cash was seized from him and in interview he stated that he was earning around £7,000 to £8,000 per week from his enterprise. £5,100 was found in his safe on 21 March, 2011 and prior to being charged for the 'Winchester matters' Harding assisted his brother, aged 16 years at the time, in to set up a limited company A related bank account was then used to make payments and between 21 March and 8 September, 2011 £49,209 was laundered through that bank account.
36. Harding (Committal for sentence ) Whilst on remand at HMP Preston he was found with a mobile phone and two sim cards in his cell.
37. In the light of our comments above in paragraphs 4 and 5, the prosecution case should obviously have been viewed analytically by the sentencing judge. However, as it stood it was apparently as follows: the general conspiracy to supply the class A and B drugs was headed by Bowden, now aged 43, who was involved at every material turn of events and was the guiding force and overall boss. It was the prosecution's submission that he was to be sentenced as having the leading role and in view of the seriousness of the case and the pre-eminence of his role he was above the upper limit of category 1. No written basis of plea was entered. Bowden's immediate subordinates were Waters and Rooks. Waters, now aged 46, was said to have undertaken a leading role and it was a feature of the evidence that he kept himself in the background but it was obvious from phone analysis that he was very often involved, especially with Bowden and Rooks whenever a significant event was just about to occur or had just occurred. Rooks, now aged 47 was placed at the top end of significant with some features of a leading role. The Merseyside part of the OCG involved Bowden dealing with McDonald and McComb in commercial quantities of MCat. McDonald, now aged 30, was said to have undertaken a leading role and McComb, now aged 52, a significant role. The prosecution contended that McDonald was involved in 4 kilos of methcathinone, he said 2 kilos. He acted at all times as a middle-man in the supply of MMC by introducing McComb to Bowden. Pitts, now aged 37, was involved in the storage and transportation of cocaine and amphetamine on behalf of Rooks and Bowden. Pitts was said to have undertaken a significant role. His basis of plea was that he was involved in one day only. He was asked to transport the cocaine for onward delivery. He accepts attending the unit and was aware that amphetamine was there. He was not involved in the supply of the 11 kilos of amphetamine found in Murphy's car. This basis of plea was not accepted by the prosecution but no Newton hearing took place. Murphy, now aged 48, was said to have undertaken a significant role. His basis of plea was that the drugs seized at the time of his arrest from the vehicle and the unit was the only consignment with which he had been involved. He was asked to act as a courier for the drugs by one of the co-conspirators who was the only person in the conspiracy known to him. Knight, now aged 27, played a significant role Harding, was said to have undertaken a leading role. Jonathan Booth was said to have undertaken a significant role. His basis of plea was that Waters had been a friend of his for years and when he was asked to accept delivery of the packages he felt that he was under some degree of pressure to co-operate and he foolishly did what was asked. He had no other involvement in any other respect of this case. He was simply a delivery address and no more. He received no reward, financial or otherwise for his limited role.
38. These co- joined appeals obviously feature common facts and criticisms but the position of an individual appellant will be subject to differentiation not only by virtue of their disclosed criminality but also their personal mitigation. We have considered the merits of each appellant individually.
39. Bowden:

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows. His credit for plea would be 25%. He had pursued an abuse of process argument unsuccessfully before entering pleas. He was the leader of a large scale organised criminal drugs gang. He had directed or organised the buying and selling of drugs on a commercial scale. His contention that he should be placed on a level with Rooks and Waters and that his plea was based on a prosecution case summary to that effect was rejected, as was the argument that the absence of his participation in the importation of methcathinone and his courier type activities should prevent him being described as playing a leading role. His contact with Holland after the receipt of cocaine at about 90% purity indicated close links to the original source. He had an expectation of substantial financial gain. He had two relevant previous convictions, in 1991 for possession with intent to supply and in 1993 possession. If he had been sentenced on individual counts his sentences would be 16 years, 11 years, 7 years and 2 years 6 months. Reflecting his overall criminality and totality the sentences, she started at 25 years, reduced by reason of his personal mitigation and exemplary conduct in prison to 20 years, further reduced by 25% in respect of his late plea to arrive at 15 years in respect of Count 1 with concurrent sentences as indicated previously.

40. His grounds of appeal aver:

1. Insufficient credit for plea;

2. A plea based upon the earlier indication of the Prosecution that Bowden would be regarded as on parity with Waters and Rooks and therefore wrong attribution of overall leading role;

3. Disparity in sentencing Bowden and Rooks on Count 1;

4. Totality;

5. Inappropriate comparison of mephredone with cannabis without knowledge of purity and uncertain inference as to weight derived upon discarded packaging.

6. Inadequate credit for personal mitigation.

41. We find there are no merits in grounds 1, 2, 3, 5 and 6. The Appellant chose to run an abuse of process argument in a voire dire that failed. For our part we consider the argument was patently untenable. There is every reason why he should not be awarded full credit for plea. Mr Csoka's argument regarding the delay caused by a change of counsel is irrelevant. There was ample evidence before the judge to enable her to assess Bowden as the prime mover in an overarching conspiracy to supply Class A and B drugs. His involvement was continuous, wide ranging and influential upon others in the scheme. That said, the elevation of his status as indicated by the judge's starting figure was not warranted on the disclosed evidence as a whole. We are satisfied that he was rightly ranked higher than Rooks and Waters. We deal with the comparison argument at paragraphs 7 – 11 above. We consider the judge to have been generous in her reduction for personal mitigation. However, the starting point was more indicative of large scale Class A importation and supply than the situation in this case. Overall, we consider the correct starting point for sentence in this appellant's case is 16 years. We afford 20% reduction for personal mitigation. Thereafter he is entitled to a further reduction of 25% credit for plea. This reduces the term to 9 years 6 months. This will attach to Count 1. The other sentences will be reduced and in that the imposition of the 'lead' sentence is designed to reflect totality of offending, will be set at 4 years, 4 years and 2 years. That is, these latter terms do not represent the sentence that would be handed down to reflect individual conspiracy participation or criminality in the absence of sentence on count 1. To this extent his appeal is allowed.
42. Waters.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows. His credit for plea was 25%. He kept himself in the background but participated in the telephone activity during and after key events. He was involved in the use of the unit at Back Ashburton Road and he would take drugs from that unit for onward supply. It could be inferred that it was through him that the unit was either rented or used and in addition he played a pivotal role in the importation of mephedrone (count 5) over a period of 3 months between April and July, 2012. He organised the importation through Hamza, who in turn was in contact with Harding. He recruited Jonathan Booth. He was then directly involved in the supply of 2 kilos of methcathinone. It was clear that he was not so heavily involved as Bowden in the overall conspiracy, there was no evidence of his involvement in supplying cocaine or cannabis, but he could properly be ascribed as having a leading role in the offences to which he pleaded guilty. Personal circumstances counted for little when sentencing for this type of offending. He previously sold methcathinone when it was a legal high and continued to sell it when it became illegal. There were positive prison certificates. If sentenced on individual counts his sentences would have been 11, 4½ years and 4½ years. Reflecting his overall criminal conduct and totality the starting point would be 15 years reduced to 14½ years for good conduct in prison and reduced it to 10 years, 8 months for plea with concurrent sentences as indicated previously. Two months of the suspended sentence is activated consecutively making 10 years, 10 months.

43. His grounds of appeal aver: The judge:

1. Adopted a factual basis for sentence that was incorrect.

2. Adopted a factual basis for sentence that was improper.

3. Failed to give sufficient credit, or any, to the appellant's personal mitigation.

4. Adopted a starting point that was improper and manifestly excessive.

5. Failed to give sufficient distinction between the role of the appellant and that of others within the conspiracy.

6. Was unduly influenced by assertions as to weight and value and entered into unfair speculation as to the weight and value of the drugs in this case.

7. Failed to have regard either properly or at all to the principle of totality.

44. We consider there is merit in some of his grounds of appeal. The judge wrongly elevated facts contained in a co-accused's written basis of plea to found her remarks that Waters had rented the unit and presumably therefore had played a "pivotal role" in the importation of the mephedrone. Rooks, who pleaded guilty to Counts 1 to 4 inclusive, including conspiracy to supply cocaine and was described as Bowden's "right hand man" was said to merit a sentence of 7 years in relation to Count 2 (conspiracy supply mephredone) if sentenced separately. There could be little doubt on the facts that Harding was the main importer of significant quantities of mephredone far in excess of that for which Waters was responsible and yet received a lower sentence overall. We are not persuaded that there is any merit in relation to lack of sufficient credit for personal mitigation of unfair inference as to the weight and value of the mephredone as indicated in paragraph 11 above. Taking all factors properly into account we consider the correct starting point to reflect the totality of his offending to be 10 years. The appellant was in a leadership role in a professionally organised and executed conspiracy to supply Class B drugs on a commercial scale. He recruited others. He is entitled to a discount of 25%. His sentence is thereby reduced to 7 ½ years. This sentence will be substituted for the 10 years 8 months imposed in relation to Count 2. There will be concurrent sentences in relation to Count 3 and 5 of 3 years imprisonment. For breach of the suspended sentence handed down in relation to a charge of assault occasioning actual bodily harm, the term will be activated as to 3 months to be served consecutively. This results in a total sentence of 7 years 9 months. To that extent his appeal is allowed.
45. Rooks.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows He received credit of 33% in respect of his pleas to counts 2, 3 and 4 and 30% for his plea to count 1 entered on the 22 January, 2013 although offered a week before. His basis of plea was that his involvement with the supply of cocaine (count 1) was limited to 4 kilos on the 5 April, 2012. He played a very significant role in the acquisition of 4 kilos of high purity cocaine (count 1) and recruited another to collect the drugs providing him with a car. His telephone contact with Bowden around this time was strong circumstantial evidence that he was heavily involved with him in relation to the drugs once they had been brought into the country from Holland. There were features of a significant and leading role. He had operational management functions within the chain of the organisation and involved others in the operation. He was motivated by financial or other advantage and had more than some awareness and understanding of the scale of the overall operation. He had substantial links to and influence over others in the chain He must be sentenced upon a basis that he was the right hand man of Bowden. On arrest he had possession of the keys to the unit in Back Ashburton Road and it was clear he played a very significant role in the storage, production and distribution of drugs from those premises. He had at least two meetings with McComb and McDonald in connection with mephedrone and supplied O'Connor with the drug on 1 June. He was seen giving something to Pitts on the 31 March leading up to the discovery of large quantities of cocaine and amphetamine in the possession of Murphy which was a feature of a leading role. The court rejected the submission in relation to cannabis, amphetamine and mephedrone that he was nothing more than an errand boy. As to his previous convictions, of relevance are convictions for two offences of possession of a controlled drug in 1994 and possession of amphetamine and a Class C drug in 2010. The Court had seen certificates he had acquired whilst in prison. If sentenced individually the sentences would be 11 years, 7 years, 6 years and 26 weeks. The sentence would address criminality and totality. The starting point on count 1 would be 15 years. Applying the discount of 30% reduced it to 10 years, 5 months and a further reduction was made to 10 years to reflect remorse and the fact that full credit should apply to those counts which were being taken into account with concurrent sentences as indicated previously.

46. His grounds of appeal aver

1. The Judge was wrong in adopting a sentence of 11 years (before discount for plea) in relation to count 1.

2. In relation to count 2 she erred in law and fact in equating M-Cat to amphetamine. Such evidence as there was did not permit that conclusion.

3. In relation to counts 2 and 3, the judge took too high a starting point.

47. There is no merit in ground 2 for the reasons given in paragraphs 7 - 11. There is merit in the other two grounds. This appellant was a key player, second only to Bowden in his involvement in and execution of the overall conspiracy to supply Class A and B drugs. We consider the correct overall starting point for sentence was 12 years, bearing in mind the purity of the cocaine, the involvement of Class B drugs and the role occupied by the appellant. With reduction for plea in line with the judge's indications we reach a sentence of 8 years 6 months. This will be the sentence substituted in place of the 10 years handed down in relation to Count 1. There will be concurrent sentences of 4 years and 4 years respectively in relation to Counts 2 and 3, and 6 months in relation to Count 4 on the same basis as that indicated in the case of Bowden. To this extent his appeal is allowed.
48. Harding.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows. The global weight of methcathinone over all three indictments was 80 kilos. He had pleaded guilty at the first possible opportunity so far as the committal for sentence was concerned. He had no relevant previous convictions. He had a very supportive family. A facial disfigurement affected his childhood and adolescence to a significant degree. At the outset of his commercial drug dealing the drugs he was selling were legal but once they became illegal he continued to supply them because of the profits. He became arrogant and cocky. He had absconded from Winchester to Liverpool on bail after laundering over £49,000 since his first arrest. Once in the North West he continued to import mephedrone and supply it in large quantities to others and had a leading role in all of the drug offences to which he pleaded. He had involved his 16 year old brother which was an aggravating feature. In respect of Count 1 (T20127816) 80 kilos was outside the guidelines. Taking into account his role as the importer, that he recruited his brother as well as Knight and that the vast majority of his offending took place whilst he was absconding on bail using a false identity, he would attract the same starting point as Bowden had for 125 kilos, 11 years reduced by 33% for his early guilty plea resulting in a sentence of 7 years and 3 months. For Counts 5, 7 of the lead indictment, concurrent sentences as indicated. For count 8 there would be a consecutive sentence of 12 months after full credit for plea. For the Winchester indictment, he would have credit of 25% for plea and concurrent sentences as indicated. Count 14 justified a consecutive sentence since the criminality occurred once he had been arrested and continued after he had been charged, a sentence of 9 years. In relation to the telephone, a deterrent sentence but bearing in mind totality, a further 8 months consecutive.

49. His grounds of appeal aver:

1. The starting point for the sentence on count 1 was too high.

2. It was not appropriate to make the sentence on count 8 consecutive.

3. The starting point for the matter committed for sentence was too high.

50. Mr McDiarmid, who appears on behalf of Harding, in his oral submissions neatly encapsulated the appeal by these phrases: double counting, disparity and totality. We accept that the overall criminality of this appellant must contemplate his offending reflected in three indictments, his leading role throughout it all, his corruption of his younger brother and offences committed not only whilst absconding on bail. His obvious intelligence and entrepreneurial skills defy his youth and rather increase his culpability despite the absence of previous convictions and render any mitigation that attaches thereto minimal. However, we are satisfied that the weight of mephedrone involved overall, whilst high, was significantly less than in the cases of Bowden and Waters and warranted a decreased starting point. The correct starting point should have 10 years imprisonment. Allowing discount for plea this reduces the term to 6 years 9 months. There is merit in his argument that he should not have been dealt with differently to Knight in relation to possession of false documents. The sentence for the offence for which he was committed for sentence was too high in the light of totality. His sentence was rightly made consecutive, but the overall sentencing exercise urged restriction to 3 months. The sentence is therefore one of 7 years imprisonment. To that extent his appeal is allowed.
51. McComb.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows He had no relevant previous convictions. His motives for becoming significantly involved in the supply of Class A and B drugs were financial. He had a large stock of drugs for onward supply. He was intimately connected with McDonald and Bowden. He played a significant role. If sentenced individually the sentences would be 7 years 6 months, 2 years 6 months, and 5 years. The sentence reflecting criminality and totality would be 11 years 6 months reduced to 7 years 6 months giving credit for plea and further reduced to 6 years 9 months to "reflect his obvious remorse". The concurrent sentences would have received 40 % credit for earlier pleas.

52. His self drafted grounds of appeal aver that the sentence is manifestly excessive and illogical since she [the judge] did not state what the reduction of 40% was from and that she thought the drugs were all the same purity.
53. We agree that the articulated mechanism of arriving at the overall sentence was illogical, however, we are not satisfied that the sentence handed down was manifestly excessive. The appellant had a significant role in the storage, measurement and transportation of Class A and B drugs. The quantities of drugs with which he was involved permitted a lower starting point than in the case of Bowden and Rooks in relation to Count 1, or Waters in relation to Count 2. The appellant had no relevant previous convictions but the cocaine was of high purity. This merited a starting point of 7 years. The additional weighting to reflect the other conspiracies would be 3 years. The overall starting point would then have been correctly designated as 10 years. Giving appropriate credit for plea reduces the sentence to 6 ½ years. This does not render the sentence of 6 years 9 months manifestly excessive. We dismiss his appeal.
54. Murphy.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows He received credit for pleas entered on 16 January 2012 of 30%. His basis of plea was that the drugs seized upon arrest were the only consignment he was involved in, having been asked to act as a courier by one of the conspirators known to him. He expanded on that to the author of the PSR by saying that it was Pitts. If, as he claimed the drugs in the car and in the unit were part of the same consignment, he must have had some knowledge of the contents. There was forensic evidence demonstrating that he handled the drugs in the unit. He had two relevant previous convictions for possession of cannabis. His last conviction was in 2007. Whilst on bail and living in a hostel, he became the primary carer for another resident. There were a number of positive references before the Court. He was sentenced as being in the significant role category. If sentenced individually the sentences would be 6 years, 6 months and 5 years. Reflecting criminality and totality the sentence would be 9 years reduced by 30% to 6 years 3 months with a concurrent sentence as previously indicated.

55. His grounds of appeal aver: The Judge

1. Erred in placing the appellant within significant role/category 2 instead of lesser role/category 3.

2. The starting point of 9 years' imprisonment on count 1 was too high taking into account all the features of the case.

3. The starting point of 5 years' imprisonment on count 3 was too high taking into account all the features of the case.

4. The totality of the sentence was manifestly excessive in all the circumstances.

56. There is merit in this appeal on the basis of plea tendered. In considering the stated isolated nature of the appellant's involvement in the conspiracy more assistance can be garnered from the definitive guidelines than would otherwise be possible in sentencing for the conspiracies. The correct starting point for sentence in Count 1 was 5 years, taking the quantity to indicate an entry point straddling categories 2 and 3, and the lesser/significant role ambivalence. The quantity of amphetamine indicates an entry point at the bottom of category 2 in a similar role, namely 5 years. The overall starting sentence should have been 7 ½ years. Taking into account the historic nature of his relevant previous convictions and his limited participation in the whole, this should have been reduced to 6 years before reduction for plea, namely 30%. This produces a sentence of 4 years 3 months.
57. Pitts.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows his basis of plea was that he was involved in the conspiracy for one day only when he was asked to transport cocaine for onward delivery. He agreed to get involved in transporting drugs between Murphy's lock up and the hotel and then dropped Murphy off at the hotel, unaware that he carried out of the hotel 11 kilos of amphetamine. All he was aware of was the ½ kilo of cocaine in the unit along with the 3.15 kilos of amphetamine. The prosecution was content that he could be sentenced on that basis although it was of note that his basis was at odds with that of Murphy who maintained that it was Pitts who recruited him and that he went to the hotel on two occasions. He was fortunate that the prosecution were content that he be sentenced on the basis of the drugs in the unit alone but it was not agreed that his criminality was limited to the 1 June, 2012. He had one relevant conviction in 2009 for possession of cannabis. He had been on strict bail conditions for over 12 months and was not seen during the surveillance after 1 June, 2012. The Court was satisfied that he played a significant role in the offences in a manner which could be inferred that he was undertaking an operational function within the operation. He was also acting for financial gain and the Court was satisfied that he recruited Murphy into the conspiracy. If sentenced individually the sentences would be 6 years, 6 months and 2 years 6 months. Reflecting criminality and totality the sentence would be 8 years reduced by 25% to 6 years and a concurrent sentence as previously indicated. Following representations as to the Judge's calculations, she reduced the overall sentence to 5 years, 8 months but refused to reduce it further despite having her attention drawn to the fact that the Prosecution did not open the case on the basis of Pitts recruiting Murphy into the conspiracy which could only have come from Murphy's basis of plea. The Judge indicated that she had had close regard to the telephone evidence and she did not, in fact, have to accept a basis of plea.

58. His grounds of appeal aver the sentence was manifestly excessive and wrong in principle because –

1. The Judge did not sentence upon the basis of plea.

2. She placed the appellant in a significant role.

3. She passed consecutive rather than concurrent sentences.

59. This appeal has merit on all grounds. The judge was entirely wrong to elevate matters raised in the mitigation of another defendant into evidence against this appellant. There seem to have been scant if any regard to the basis of plea and no indication that a Newton hearing would otherwise be required. For the reasons indicated in the case of Murphy, there is greater assistance to be obtained from the definitive sentencing guidelines on the basis of involvement during the course of only one day. The correct starting point for the cocaine was 5 years, increased to reflect his knowledge of the 3.4 kg amphetamine to 6 years. Bearing in mind his lack of relevant convictions and the more limited involvement on the day to that of Murphy the sentence before discount for plea should have been 5 years, less 25% discount for plea to reach 3 years 9 months. To that extent his appeal is allowed.
60. McDonald.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows He pleaded guilty to count 2 on a basis of plea and his credit would be 25%. The court was not required to take a basis of plea at its face value particularly when to do so would be to ignore the evidence before the court which was that he was in direct contact with Bowden as was McComb, but more importantly he was also in contact with Harding who, the Court was sure, was the source, as an importer and supplier of the mephedrone. On the 14^th Bowden contacted him and it was at that stage that he contacted McComb for the first time. There was then an extraordinary amount of telephone activity between him and Bowden and him and McComb and to a much lesser extent between Bowden and McComb. The Court was satisfied that he was the connection between the Fylde drug suppliers and the Merseyside drug suppliers which did not make him a middleman but rather someone organising the selling of drugs on a commercial scale. His role, whilst a leading one, also featured within the significant role category. He would be sentenced having regard to the bottom end of the leading role category. He had relevant previous convictions. Possession of a class B drug in 2001, possession of MDMA with intent to supply in 2002, possession of cocaine and amphetamine in 2004. In 2009 he was sentenced to 52 months for wounding with intent and was on licence when he committed the drugs offence. This was an aggravating feature. When he first became involved in the supply of mephedrone it had been a legal high. That was no longer the case. There were positive prison reports. He was sentenced on the basis of having a leading role. The starting point would be 5 years increased to 6 years to reflect the aggravating feature of his being on licence at the time of his offending. As a result of his conduct in custody that would be reduced to 5 ½ years. Applying 25% reduction for his plea resulted in a sentence of 4 years, 1 month.

61. His grounds of appeal aver :

1. The Judge erred in assessing mephedrone as most comparable to amphetamine rather than cannabis.

2. The sentence is per se manifestly excessive.

3. There is an unjust disparity between the sentence for the appellant and those of some of his co-accused.

62. There is no merit in the first ground of appeal. The third is subject to the observations in paragraph 6. However, we conclude that the sentence was manifestly excessive in the light of the basis of plea. The crucial distinction between the prosecution and defence was quantity, 4 rather than 2 kg, not role. However, the judge in expressly rejecting the basis of plea attributed to this appellant a leadership role not suggested by a critical reading of the evidence or the prosecution. This appellant, despite his relevant youth amongst the co-conspirators, has numerous relevant previous convictions. He was on licence at the time of the offence. The correct starting point should have been 3 years, statutorily aggravated by the factors above to 4 years. His credit for plea reduces the sentence to 3 years, which will be substituted for the sentence of 4 years 1 month. To this extent his appeal is allowed.
63. Knight.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows He received full credit for plea. The Court accepted that he was truly remorseful for his conduct. He had gained certificates of positive engagement in prison. He held a significant role to him in relation to count 1 and would be sentenced upon the basis of weight of no more than 40 kilos of mephedrone. Reflecting criminality and totality the starting point was 7 years reduced to 4 years, 6 months for plea, with no separate penalty and concurrent sentences as previously indicated.

64. His grounds of appeal aver:

1. The sentence is manifestly excessive in the circumstances of the case and in particular the personal circumstances of the appellant.

2. Insufficient credit was given for the guilty plea.

3. The case was sentenced other than in accordance with the sentencing guidelines.


65. There is merit in ground 1. Grounds 2 and 3 are misconceived in their formulation. The starting point identified by the judge was high, but not so high as to be classified as outside the band of reasonable determinations possible. This was a large quantity of M-Cat. His role was active and the judge was not sentencing on the basis of an isolated incident. However, prior to full reduction for plea, she should have taken into account the factors reducing seriousness or reflecting his personal mitigation including his lack of relevant convictions and that which she recognised to be his genuine remorse. In our view these factors followed by due credit for plea at first opportunity reduces the sentence to 3 years 9 months. We do not interfere with the other sentences. His appeal is allowed to this extent.
66. Booth.

The judge's sentencing remarks so far as we consider relevant for the purpose of appeal are as follows He received a discount of 25% for plea. His basis of plea was "noted". He had no relevant previous convictions. The Court was satisfied that he knew that the packages contained drugs from the outset. The Court had seen a letter from his doctor as to his ongoing ill health problems. He was assessed as holding the very highest end of a significant role by reason of him performing an operational function within the chain. He was motivated by financial gain and had some awareness and understanding of the scale of the operation. He had his wife and another to become involved. That conduct had significant consequences in relation to the starting point. The correct starting point was 3 ½ years reduced as a result of his personal circumstances to 2 years, 8 months and further reduced to 2 years for plea.

67. His grounds of appeal aver:

1. His limited basis of plea, as accepted by the prosecution, was that his involvement was minor. Later, the prosecution said he played a significant role. He had no financial gain. His role was considerably less significant than that stated by the Judge.

2. Had his role been properly identified then the custodial sentence should have been suspended.

3. His medical condition submitted to the Judge together with other mitigation would have therefore have had a greater effect on the outcome of his sentence.

4. The Judge erred in law by using the same sentencing guidelines for amphetamines rather than those relating to cannabis. There are no sentencing guidelines in respect of cases involving methcathinone (mephedrone).

68. There is no merit in grounds 2,3 and 4. There were no sufficiently compelling factors of personal mitigation or which otherwise reduced the seriousness of the offending to suggest a suspended sentence as an appropriate disposal in this case. The appellant's medical condition was taken into account. Ground 4 is dealt with in paragraphs 7 - 11 herein. However, the judge did sentence other than in accordance with the basis of plea, the combined effect of which, incorporating as it did much of his personal mitigation would entitle Booth to be regarded as holding a lesser role in the importation. In those circumstances the correct starting point would have been 2 ½ years. Reduced by 25% for plea equates to a sentence of 18 months – to that extent his appeal is allowed.