Attorney General Reference Nos 117 & 118 of 2005

LORD JUSTICE LATHAM: This is an application by the Attorney General for leave to refer to this court sentences of 16 years' imprisonment imposed upon the two offenders, Byfield, who is 37 years of age, and Swaby, who is 38 years of age. They had been convicted on 15th November 2005, following a two and a half month trial, of a conspiracy fraudulently to evade the prohibition on the importation into this country of Class A drugs.

The conspiracy was evidenced by a total of six consignments of drugs, five of which were brought into this country by couriers and one of which was brought into Switzerland, with the intent that it should ultimately be transported to this country.

The first and second consignments arrived on 19th January 2003, when customs officers stopped two women who were coming to this country from Tobago, arriving at Gatwick. As far as one of those women was concerned, she was found to have cocaine which amounted to 3.07 kilograms at 100 per cent purity in a false panel in the base of her suitcase. The other woman had cocaine which consisted of 2.75 kilograms at 100 per cent purity, also in a false panel in the bottom of her suitcase. They had both been recruited by these two offenders, who had arranged for their travel and accommodation; and there were telephone intercepts which made plain the connection between the offenders and the offenders and the two couriers.

The third consignment came into Manchester Airport, again from Tobago, on 18th July 2003. The courier on that occasion had swallowed 95 pellets of cocaine amounting to half a kilo in weight at 100 per cent purity. It was clear that her travel to this country had been arranged by the offenders, and, once again, telephone contact had been made between the offenders before her arrival and between themselves and with her in Tobago; and she had Swaby's telephone number with her when she was stopped at the airport.

The fourth consignment arrived again in July 2003, but on this occasion from Jamaica into Switzerland. 4.14 kilograms of cocaine at 100 per cent purity was intercepted by the Swiss authorities. It was clear that it had been the intention of the offenders that this consignment should be met in Switzerland; and to that end the offenders had arranged with two men, West and Rochester, to collect the drugs and drive them back to this country. The problem for the offenders was that in fact the car that was used was not reliable and the two whom they had arranged to meet the consignment in fact failed to go to Zurich, where the consignment arrived, but went elsewhere. Nonetheless, it was clear that the consignment was intended for the offenders and the arrangements had been made to ensure its ultimate arrival in this country.

As far as the fifth and sixth consignments were concerned, they arrived in November 2003 from Nicaragua. Again, two couriers were stopped at customs. One was found to have 2.27 kilograms of cocaine at 100 per cent purity in her suitcase; the other, 1.71 kilograms at 100 per cent purity. Once again, there was no doubt that all the arrangements for the travel of those two couriers had been made by the offenders.

The total weight of the drugs seized was 19.58 kilograms, which amounted to 14.45 kilograms at 100 per cent purity, with a street value estimated in excess of £1.5 million.

The Attorney General submits that, bearing in mind the length of time over which this conspiracy lasted, which was about a year, the fact that the offenders were clearly in charge of these importations and had made all relevant arrangements in relation to them, the quantities of cocaine involved and, perhaps more important than any other aspect of the case, the fact that they were the ones who had recruited the couriers and had exposed them to the risks which eventuated of their being arrested and sentenced to substantial periods of imprisonment, and as far as one of them was concerned, exposed her to the risk of death by involving her in the importation of cocaine which she had swallowed, the sentence of 16 years imposed on each of them was unduly lenient.

It is accepted on behalf of the Attorney General that the offenders are both men of previous good character. It is to be noted that the judge, when sentencing them, made allowance for the fact that, although arrested in 2003, they were ultimately convicted in November 2005. The judge stated that the period of time over which the offenders had these matters hanging over their heads was a matter that he could take into account.

As to that, the position was that the trial in which they were convicted was the second trial, the first trial having commenced in January 2005; but that trial had to be aborted after three weeks because, in relation to the importation into Switzerland, the Swiss authorities had not permitted witnesses to leave the country so as to be able to attend the trial. It was not until that difficulty had been resolved that it was possible to recommence the trial, as happened in the autumn of 2005.

On behalf of the offenders, it is accepted that they were the organisers of these importations. It is also accepted that these were substantial importations and that therefore substantial sentences of imprisonment were inevitable. It is pointed out that the organisation was not, however, of the most sophisticated, as evidenced by problems that arose in relation to the importation via Switzerland. The fact that there had been such a delay in the trial process, it is submitted, was a matter which the judge was entitled to take into account in determining the appropriate level of sentence. And of course we are asked to bear in mind the fact that they are men of good character, even though it is acknowledged that that is usually of small significance, if any significance, in cases of serious drug importation.

As far as the offender Swaby is concerned, he has, sadly, an ill daughter. She has cerebral palsy; and before he was sentenced to imprisonment it is plain that he played a significant part in her care.

As far as Byfield is concerned, he is a married man with four children.

On behalf of Swaby, we have been referred to the case of Littlefield, who was one of the appellants who was before the court in the appeal which is generally identified as Aranguren [1994] 99 Cr App R 347. As far as Littlefield was concerned, the position there was that he was a 43 year old convicted after re-trial at Reading Crown Court. The amount of cocaine imported in his case in a single importation was 12.78 kilograms at 95 per cent purity. He was sentenced to 15 years' imprisonment. There had been delay in his trial and the court specifically referred to it. There was no evidence of high living, and it is submitted that that is the case in relation to both these offenders. The Court of Appeal considered that his sentence was entirely appropriate.

As far as the offender Byfield is concerned, we have been referred in particular to the case of Richardson [1994] 15 Cr App R (S) 876, where the court considered a sentence of 25 years' imprisonment in relation to a very substantial importation of 45 kilograms of cocaine and a second conspiracy to import 144 kilograms of cocaine. The court there held that a sentence of 25 years after trial could not be faulted, but that as far as another offender was concerned, who had pleaded guilty and been sentenced to 20 years' imprisonment, that should be reduced to 18 years because it did not give adequate credit for the plea.

It is submitted to us on Swaby's behalf that, accordingly, the indication from that authority is that sentences in excess of 20 years' imprisonment are reserved really for the most substantial quantities of cocaine and that this case does not fall into that category. The consequence is that the judge having been correct, it is submitted, to have taken into account to some extent his good character and delay, the sentence of 16 years could not be considered to be unduly lenient.

On behalf of the Attorney General, we have been referred to a substantial list of other authorities dealing with the importation of cocaine and heroin. It seems to us that considering the combined effect of the cases of Aranguren 99 Cr App R 347 (to which we have already referred), Garcia [1992] 13 Cr App R (S) 583, Scamaronie [1992] 13 Cr App R (S) 702, De Four [1996] 2 Cr App R (S) 106, Agboola [2005] EWCA Crim 1535 and Williams [2005] EWCA Crim 2950, we would have expected for this conspiracy a sentence in excess of 20 years' imprisonment for these reasons. Not only is the amount involved a substantial amount, that is in excess of 14 kilograms in total, but it was a persistent series of importations where there was significant planning, involving a number of couriers who were exposed to the risks to which we have referred by reason of these offenders' activities. It seems to us that those who are involved in importation to a significant degree, as these were, and as organising spirits, must expect sentences of in excess of 20 years' imprisonment.

Taking into account double jeopardy, and of course giving such credit as is appropriate for their previous convictions, we consider that the appropriate sentence is one of 20 years, and in our judgment the judge accordingly imposed unduly lenient sentences on both these offenders. We give leave to the Attorney General to refer the sentences to this court and we increase them to the extent that we have indicated.