Wood & Anor, R. v

We have before us renewed applications for leave to appeal against sentence by Martin Flynn, who is aged 37, and Lewis Wood, who is aged 26, following refusal by the single judge.

On 4 October 2007, at Swansea Crown Court, before His Honour Judge Christopher Morton, Flynn pleaded guilty on re-arraignment to conspiring with Wood, Neil Walters and Philip White to supply Class A drugs. In addition, he pleaded guilty on re-arraignment to possessing cannabis with intent to supply and handling stolen goods. A charge of using a vehicle with no insurance, which had been committed by the magistrates' court, was dismissed.

On 13 July 2007, Wood pleaded guilty to conspiracy to supply Class A drugs.

On 23 October 2007, Walters, who disputed his guilt, was convicted following a trial.

On 22 February 2008, all three were sentenced by His Honour Judge Price QC. Flynn received a sentence of nine years' imprisonment for the conspiracy to supply Class A drugs. He also received concurrent sentences of five years' imprisonment for the possession with intent and three years' imprisonment for handling stolen goods. Wood received a sentence of seven years' imprisonment. Following confiscation proceedings, Wood was found to have benefited in the sum of approximately £38,000. The amount available to satisfy his liability in respect of his benefit was only £5,000 and a confiscation order was made in this sum. Walters was sentenced to four-and-a-half years' imprisonment. White, who pleaded guilty on 13 July 2007 to the conspiracy count, received a sentence of four years' imprisonment. In proceedings under the Proceeds of Crime Act 2002, his benefit was found to be in the sum of approximately £2,000. The available amount was found to be under £100. A confiscation order was made in that very small sum.

Both Flynn and Wood admitted being part of a conspiracy to supply cocaine and ecstasy in the Pembrokeshire area of West Wales between 1 September 2005 and 21 April 2007. Over this period some 25 deposits were made into Flynn's bank account from various banks in West Wales, totalling £37,580. The majority of the deposits were made by Wood and two were made by White. Flynn lived and worked in Manchester, where he was employed as a fireman.

The case for the prosecution, which was accepted on behalf of Flynn, was that as between the various defendants he was the principal conspirator. He would arrange the supply of cocaine and ecstasy from Manchester to Pembrokeshire via Wood. Wood's role was to arrange for the delivery of the drugs to Pembrokeshire and further arrange their onward distribution. The applicant Walters and co-accused White were on a relatively equal footing and acted on behalf of Wood, primarily collecting the proceeds of sale which would be passed to Wood for onward transfer to Flynn. They were also involved in the distribution of drugs on behalf of Wood. The monies deposited in Flynn's bank account represented the proceeds of sale.

On 20 April 2007, when they were arrested, Flynn was seen driving a BMW motor car, the value of which was said to be £30,000. It displayed false number plates which had been stolen from Sussex in September 2005. Flynn was observed in the vehicle in a supermarket car park in Ruthin passing a carrier bag to White. The bag contained a quarter of a kilo of cocaine at 43% purity, which had an estimated street value of £10,000 to £15,000. Following his arrest, another BMW parked at the rear of his home address was searched. Concealed in the boot was in excess of a kilo of cannabis in five bars, with a total estimated street value of £3,000 to £4,000. These circumstances led to the counts of handling stolen goods (the BMW driven by Flynn, which had been stolen in Sussex in September 2005 and was valued at £30,000 by the prosecution, although Flynn disputes that that represented the true value of the motor car). The cannabis found in the boot of the other BMW was the basis of the charge to which he pleaded guilty of possession of cannabis with intent to supply.

Wood and White pleaded guilty at an early stage at the plea and case management hearing. Flynn and Walters initially pleaded not guilty. Flynn later changed his plea and submitted a written basis of plea which was not accepted by the prosecution. The matter was listed for a Newton hearing in December 2007, at which time his basis of plea was revised and reduced to three paragraphs, which were acceptable to the prosecution. This basis of plea was to the effect that he became involved in the conspiracy because he was a cocaine addict who was heavily in debt to his suppliers. He had begun taking the drug as a way of coping with post-traumatic stress which had developed following a horrific accident he had attended as a fireman. The prosecution accepted the matters put forward in that written plea on the basis that they were within Flynn's own knowledge and therefore they could not be controverted by the prosecution.

The judge sentenced Flynn and Wood on the basis that this was a large-scale conspiracy and that the defendants' activities had contributed greatly to the supply of cocaine and ecstasy in West Wales. Flynn was at the apex of the conspiracy. He was close to the principal suppliers in the Manchester area, from where he was able to orchestrate the distribution to local retailers. Wood was Flynn's right-hand man, who arranged the delivery of the drug to contacts in Pembrokeshire. He was trusted to collect and bank the money into Flynn's account. White and Walters were the local contacts; they would supply the local retailers and pass the income back to Wood, who would pass it up to Flynn who would receive some benefit from his activities. White was more deeply involved that Walters because on two occasions he banked the money into Flynn's account and there was no evidence that Walters ever did anything of this kind. In addition, Flynn fell to be sentenced for the cannabis and for the handling of the stolen BMW, which had been given to him by his own suppliers as a perk for his drug-dealing. All were treated as being of good character, and indeed they were. Both Flynn and Wood were given a full discount for their guilty pleas. In the case of Flynn, but for his personal circumstances, a full discount would have been inappropriate, but having regard to all the circumstances the judge decided that a full discount should be given in his case.

There were pre-sentence reports in the case of both Flynn and Wood, and other documents and information before the judge. Flynn had made extensive admissions in interview and he provided a written basis of plea. His character was described as impeccable. As a fireman he had trained as a trauma technician. The references that were before the judge, and are before this court, showed that he had had a courageous and distinguished career. This offence was out of character. He had let down himself, his partner, his family and his friends, all of whom had reacted to his conviction with incredulity. The pre-sentence report concluded that there was a low risk of re-offending.

We have the benefit of a medical report in which the doctor accepted that Flynn suffered from post-traumatic stress disorder following a horrifying accident on the motorway. This led to depression and his experimenting with cocaine. He became dependent and incurred debts to his dealer. He worked off his debts and indeed earned money himself by his dealing with other suppliers lower down the chain in West Wales.

In submissions on behalf of Flynn it is said that too high a starting point was taken by the sentencing judge. We take into account that the quantity of Class A drugs seized was relatively small. However, the documents found at Flynn's home showed that he was supplying to a relatively large number of people and was owed a significant sum of money, all of which was consistent with the judge's appreciation of this as being a large-scale conspiracy. The Proceeds of Crime Act statement in Flynn's case was commensurate with a large-scale conspiracy.

We can see no defect in the judge's approach to the sentence in his case. Moreover, as Treacy J said in the course of argument, had these sentences been constructed on the basis of separate consecutive sentences for each of the three counts, as the judge would have been entitled to do, there could have been no possible complaint as to the sentence in his case. We have taken into account all that has been about him. Nevertheless, we can see no defect in the sentence passed by the sentencing judge. We agree with the comments of the single judge in refusing the application for leave. We, too, refuse leave.

Wood was in a different position. He operated at a lower level than Flynn. The judge treated him as his right-hand man. Nonetheless, the Proceeds of Crime statement indicates a benefit of no more that about £38,000 in his case. He was of good character. He was a cocaine user who, like Flynn, funded his dealing for his own use. He owed only £3,870 to Flynn, according to the documents found in Flynn's possession, out of the £130,000 owed to Flynn. That is a discrepancy in the figures which, in our judgment, to some extent reflects the difference in their roles and responsibility.

Wood, too, had a good pre-sentence report which indicates low risk of re-offending. His prison report is excellent. He had a law degree, which he is unlikely ever to be able to use. He initially gave a "no comment" interview, but in due course he pleaded guilty at an early stage for which he was given full credit.

Effectively, the renewed application on his behalf is put forward on the basis that he was, albeit the right-hand man of Flynn, at a very different level of offending, as is reflected by the difference in their benefits from their crime.

That is a submission which we accept. Moreover, we accept that, given the difference in their responsibilities, the sentence passed in his case did not reflect sufficiently the difference in the criminality when viewed against that of Flynn. In those circumstances we grant leave to appeal in his case. We quash the sentence of seven years' imprisonment and replace it with one of six years' imprisonment, which in our judgment reflects the discrepancy to which reference was made on his behalf. Accordingly his appeal succeeds to that extent.

Wood is not present. He will be advised that he would have been entitled to be present at the hearing of his appeal, but if he presses for an oral hearing it is unlikely to effect a greater reduction to the sentence.

MR MURPHY: My Lord, in fact, Mr Wood's father is here and he can certainly relay all that back to him. My Lord, may I apply for a defendant's costs order out of central funds?

LORD JUSTICE STANLEY BURNTON: When you say a defendant's costs order, you mean funding for your own appearance?

MR MURPHY: Yes.

LORD JUSTICE STANLEY BURNTON: You may have a representation order. Mr Justice Treacy points out that your submissions, which were cogent and effective, nonetheless could have been made by junior counsel.

MR MURPHY: My Lord, I am not seeking to argue that it should necessarily be everything. It is whatever is allowed on taxation really.

LORD JUSTICE STANLEY BURNTON: It should be an allowance for junior counsel on an appeal of this kind.

MR MURPHY: Thank you.