Quarry, R. v

LORD JUSTICE MOORE-BICK: On 5th September 2005 in the Crown Court at Cambridge before His Honour Judge Haworth this appellant pleaded guilty to three counts of supplying a Class A drug, namely, crack cocaine, and two further charges of supplying a Class A drug, namely, heroin. On 27th January 2006 he was sentenced to a term of six-and-a-half years' imprisonment on each count concurrent. He now appeals against sentence by leave of the Single Judge.

The circumstances giving rise to the convictions were these. In the autumn of 2004 the police in Cambridge mounted an undercover operation targeting drug dealers in the area. Test purchase officers went out to seek to make contact with suppliers and one of the organisations they came across was called the "Dwayne" network. A man called Salih was one of the principal runners for the organiser and a woman called Harris permitted her home to be used as a crack house by the group. A third person, a man called Ryan, appears to have played the role of a packager of the drugs.

The Crown's case was that this was a commercial organisation set up to supply drugs to addicts and that the appellant was head of the Cambridge side of the organisation. However, it was not possible to say what his exact relationship to the rest of the hierarchy was.

On three separate occasions after a number of telephone conversations between the appellant and an undercover officer operating under the name of ‘Martin’ arrangements were made for the officer to be supplied with drugs.

On 17th December the appellant supplied Martin with 244 milligrams of crack cocaine at Mrs Harris's flat. On 18th December he supplied the officer with 430 milligrams of crack cocaine and 285 milligrams of heroin from a car in which he met Martin and on 21st December he supplied Martin with 312 milligrams of heroin and 322 milligrams of crack cocaine after arriving at the scene in the same car. On both occasions the car which brought him to the location where the transactions took place was driven by another person.

The appellant pleaded guilty on the basis that he was not in control of the operation, that the telephone number the officer had used in order to contact him was not that of his mobile telephone and that he had not spoken to the officer on that telephone. He maintained that he was not the person known as "Dwayne". One can see, therefore, from his basis of plea that he clearly put in issue the nature and extent of his role in the operation. Moreover, in view of the submission to which we shall come to in a moment it is important to note that it was not suggested that any of those matters fell outside the scope of the offences with which he was charged or that the judge should not properly consider them when reaching his decision on sentence.

The prosecution did not accept the basis of the appellant's plea and on 3rd January 2006 a Newton hearing was held. At the conclusion of that hearing the judge made findings that the appellant had spoken to the officer on various occasions on the telephone and over an entryphone intercom as well as face-to-face on each occasion when drugs had been supplied and that the appellant was the dealer who was receiving calls from clients and making arrangements for the delivery of the drugs. It was arrangements of that kind which had resulted in making the three deliveries to Martin. The judge did not find it possible to say whether the appellant was the organiser of the drugs ring, but he was satisfied that he was the local dealer in charge of the operation in Cambridge and a man trusted by the organisation in its loosest sense to arrange deals and to arrange for the delivery of drugs.

There are two grounds of appeal, although only the first has been argued at any length this morning. This is that there was no evidence to support the judge's finding that the appellant was responsible for the operation of the drug ring in Cambridge. The second, which was not seriously pursued, is that the judge gave the appellant insufficient credit for his plea and his lack of previous convictions.

Mr Macaulay also sought to advance a further argument which does not appear in the grounds of appeal, nor as far as we can see in his advice on appeal, namely, that the scope of the judge's findings went beyond that which was necessary or indeed relevant to the charges which he faced.

The Crown's case was that the appellant played a significant role in the organisation. It was submitted that the evidence showed that drugs were supplied in response to requests made by calling a particular telephone number and were then delivered by runners who were themselves addicts, or sometimes by the appellant himself.

The only person who gave evidence at the Newton hearing was the officer called Martin. We have been provided with a transcript of his evidence which can be summarised as follows:

On 17th December 2004 and subsequent days he had been engaged on an undercover operation in Cambridge as part of the drugs operation. He was in possession of a telephone number which he had called on several previous occasions. He called that number and the telephone was answered by a person whom he understood to be Dwayne. He addressed him as “Dwayne” and the person at the other end of the telephone responded as if that were his name. Martin asked about buying crack cocaine and heroin, but was told that only cocaine was available and was then told to go to a certain address and call the same telephone number when he got there. He did so and the telephone was answered by the same person who told him to go to Tina's flat. Martin said he did not know where that was and he was then told to wait where he was and that the person at the end of the telephone would come to him. At that point a marked police car drove into the area where Martin was waiting in his van, so he called the number again to warn Dwayne of the police presence. He said the same person answered the telephone and told him to go to a different flat at another address 2 or 3 minutes away.

When Martin reached that address he found the door locked. He pressed the intercom telephone. A man answered who sounded to him like the same person to whom he had spoken on the telephone. He was allowed in.

When he reached the door of the flat it was opened by a person whom he understood to be Dwayne and who, it is now accepted, was in fact the appellant. He went into the flat. He paid £20 and received two packages wrapped in clingfilm. He asked again whether heroin was available and was told it was not and at that point he left.

Martin described the voice of the man he met in the flat. He said he was softly spoken with a London accent and that it was the same person to whom he had spoken many times before when calling the telephone number to which he had referred earlier. He said he was the same person he had spoken to on each of the previous occasions that day.

On the next day, 18th December, Martin said he rang the same telephone number again. The telephone was answered by a person with the same voice. Martin asked him if he was “on”, that is, if he was willing to sell drugs. He said he was. Martin asked for three “white” and two “brown” meaning three wraps of cocaine and two of heroin and was told both were available. The man at the end of the telephone told Martin to go to a certain block of flats and ring again when he got there. He did so and when he rang again the telephone was answered by the same person who said he would be along in a moment to meet him. After some minutes a car drew into the car park. The man he had seen at the flat the day before got out of the passenger seat, came over to Martin's van and got into the passenger seat of the van. Martin handed over five £10 notes and the man counted out three clingfilm wraps of white substance and two of brown. Martin referred to him as "Dwayne" which he appeared to acknowledge.

In the course of their conversation Martin said that he might lose his driving licence soon and ask if he could bring his friend to the next meeting as a driver, if necessary. The other man agreed but said that his friend should remain in the van.

Martin said that on 21st December, another officer, Jason, went with him. Martin called the same telephone number as before and the call was answered by the same person. Again, Martin asked him if he was “on” and he said he was. Martin asked for two white and two brown. He told the man that he was already at the flats and the other man said he would send someone down in 5 to 10 minutes.

Sometime later the car that he had seen on the previous day came into the car park. He walked over to it and was invited to get into the back seat. The man he understood to be Dwayne was sitting in the front passenger seat. Dwayne gave him two brown packets and two white packets which he paid for with four £10 notes. As he left, Dwayne motioned to him to put the packets in his mouth. He pretended to, but did not in fact do so.

In answer to a question from the judge Martin said that he had called the telephone number to which he had referred in his evidence on numerous previous occasions and that on each occasion it had been answered by the same person. On each occasion the contact had led to a purchase of drugs. The drugs had been delivered by two or three different men and on one occasion by a woman.

Having heard all that evidence and having reminded himself of the burden and standard of proof, the judge found that the person to whom Martin had been speaking on each of the occasions of which he gave evidence was this appellant. He considered that control of the telephone used to place orders and arrange deliveries was strong evidence that the appellant was the primary dealer, although the evidence did not enable him to find that he was the main organiser and runner of the ring. However, the judge was sure that he was a local dealer and was a man trusted to act on behalf of the larger organisation to arrange deals and deliveries.

In our view, even ignoring what Martin had said about deliveries made on previous occasions, there was plenty of evidence before the judge to support his findings. Martin’s evidence of the nature of his contacts with the person at the other end of the telephone and of the fact that on all save one occasion the same person whom he identified as the appellant had answered the telephone was of particular significance.

The appellant was aged 21 at the time of sentence. He is now 22. He has previous convictions for driving offences and a conviction in September 2003 for an offence of possessing cocaine and heroin for which he was sentenced to 21 months' detention in a young offender institution.

When sentencing the appellant the judge referred to the fact that the supply of Class A drugs on the streets of Cambridge had mushroomed and that it was necessary to pass a deterrent sentence in order to protect the large numbers of young people in the city. The judge had already found on the basis of the evidence given at the Newton hearing that the appellant occupied a role in the organisation somewhat higher than those who simply delivered drugs to addicts on the streets and was a man who had responsibility for the operation of the drug ring.

We are satisfied that the judge was entitled to consider the nature of the appellant's role in the organisation as part of the background to the charges to which he had pleaded guilty and that for the reasons we have given the evidence supported the findings he made. The judge gave the appellant some credit for his plea, though less than full credit because the evidence against him rendered the charges almost incontestable and because he had unsuccessfully contested the Crown's case as to the nature of his role in the organisation.

We can see nothing wrong with the way in which the judge approached this matter. The sentence was severe but justifiably so. It cannot be described as manifestly excessive and this appeal must therefore be dismissed.