Lewis & Ors v R. Re Attorney General's Reference No. 15, 16 & 17 of 2012

LADY JUSTICE HALLETT:

1. Her Majesty's Solicitor General, Mr Edward Garnier QC, has placed before us three applications for leave to refer as unduly lenient sentences imposed in the Crown Court for drugs offences. On the same day, we heard a number of appeals and applications for leave to appeal against sentence also imposed for drugs offences. They each had in common the fact that sentence was passed after the Sentencing Council's new Definitive Guideline on Drugs Offences came into effect on 27 February 2012. Mr Garnier's principal submission is that the Definitive Guideline has been misunderstood and is at risk of being misapplied. He invited the court to take the opportunity to "dispel a few myths" about its impact on the level of sentences for drugs offences.

2. The most important “myth” that Mr Garnier wished to be dispelled is that it was the intention of the Sentencing Council to lower the level of sentences for drugs offences generally. Had that been their intention, it was not reflected in the press release which accompanied the publication of the Guideline. Dated 24 January 2012 it read:

".... Under the new Guideline there are likely to be increased sentence lengths for those guilty of large-scale production offences and reduced sentence lengths for drug mules. Sentences for drug mules -- who are usually vulnerable and exploited by organised criminals -- will have a starting point of six years' imprisonment.

There will be no change in sentencing for possession or drug supply offences. Where an offender profits from selling drugs, a prison sentence can be expected. Street dealers who have a significant role in selling Class A drugs, particularly those who sell drugs for profit, can expect a custodial sentence with a starting point of four-and-a-half years. Sentences could go up to 16 years for a single incident depending on the quantity of drugs involved."

The Guideline also introduces a new aggravating factor to supply offences to ensure that where offenders are dealing to those under the age of 18 they are treated more severely:

".... Deputy Chairman of the Sentencing Council, Lord Justice Hughes, said:

'Drug offending has to be taken seriously. Drug abuse underlies a huge volume of acquisitive and violent crime and dealing can blight communities. Offending and offenders vary widely so we have developed this Guideline to ensure there is effective guidance for sentencers and clear information for victims, witnesses and the public on how drug offenders are sentenced.

This Guideline reinforces current sentencing practice. Drug dealers can expect substantial jail sentences."

3. These comments were reinforced in a judgment which the Hughes LJ, Vice-President of the Court of Appeal Criminal Division, gave on behalf of the court in R v Boakye and Others [2012] EWCA Crim 838. He said:

"9. In producing the new Guideline, the Sentencing Council expressly made clear that in most respects, although it adopts a modified and clarified method of reasoning, it is expected to produce sentences broadly in line with existing practice. The Council, however, anticipated that its approach would result in reductions in sentence for a certain sub-class of courier (commonly, if inaccurately, known as 'mules')."

4. Bearing those observations in mind and the fact that the Guideline is not a statute requiring strict statutory construction, we turn to consider its terms. Although we shall focus on the first category of importation of drugs which features in the applications by Mr Garnier, the Council has adopted a similar approach throughout the Guideline.

5. The Guideline sets out a series of eight steps for the sentencing process, not all of which will be necessary in every case but which should be followed sequentially. Step one is the determination of the offence category, to which there are two aspects: culpability and harm. Culpability is demonstrated by the offender's role. Harm, or rather the potential for harm, is measured by the weight or quantity of the drug concerned.

6. The culpability and harm categories are preceded by these words:

"In assessing culpability the sentencer should weigh up all the factors of the case to determine role. Where there are characteristics present which fall under different role categories the court should balance these characteristics to reach a fair assessment of the offender's culpability.

In assessing harm quantity is determined by the weight of the product. Purity is not taken into account at step 1 but is dealt with at step 2."

Category 1, for example, refers to an "indicative quantity" of 5 kilograms of heroin or cocaine; 10,000 tablets of ecstasy; 250,000 squares of LSD; 20 kilograms of amphetamine; 200 kilograms of cannabis; and 5 kilograms of ketamine. Where the operation “is on the most serious and commercial scale" involving a quantity of drugs significantly higher than category 1 "sentences of 20 years and above may be appropriate, depending on the role of the offender".

7. Thus, the weight or quantity of the drug remains at the heart of the sentencing process. However, a direct comparison between the new guidance and the old may be misleading. Under the previous regime, sentencing ranges for drugs offences were based on the weight of the drug at 100% purity. Under the new Guideline, the purity of the drug does not become relevant until step two, when low purity or high purity of the drug may be a mitigating or aggravating factor. This is a significant change and may have been the cause of some confusion for those who have not read the Guideline sufficiently closely.

8. There may also be a misunderstanding (amongst practitioners at least) as to how to categorise the role of an offender. The Council has not reallocated offenders into different categories. The essential nature of a drugs hierarchy remains the same even if the terminology has changed. The terminology of the hierarchy has varied over the years, for example there was a time when some judges divided offenders according to military ranks: generals, lieutenants and foot soldiers. The Council has chosen the categories of "leading", "significant" and "lesser" roles. This is not a change in substance.

9. Judges are well used to assessing the roles played by offenders and placing them in a hierarchy. The judge should consider the offender's role with particular care because his or her conclusion will have a significant bearing on the appropriate sentence. He or she is not bound by the submissions of the parties, even if they are agreed.

10. It will be a rare sentencing exercise in which every person in the chain of command in a drugs enterprise is before the court. Almost inevitably there will be people lower down or higher up in the chain absent from the dock. The fact that there may be a financier or someone senior to an organiser who remains at large does not mean that the organiser has not played a “leading” role. It may, on the particular facts, put the organiser somewhere in the middle of the “leading role” range, but not in another range all together.

11. The Council has provided a list of characteristics to guide the judge in his/her task. However, the list is not exhaustive and it is not necessary for an offender to possess every characteristic before he or she can be described as fulfilling any particular role. We detect a possible tendency (certainly on the part of practitioners) to focus on the "non-exhaustive" list of characteristics provided and to give them far too strict a meaning. The words chosen have a broad meaning and judges should be astute not to place offenders in a lower category than is appropriate.

12. The categories do not provide some kind of straightjacket into which every case must be squeezed. Few offences and few offenders will match exactly the categories provided. One offence or one offender may straddle a number of categories. There may be more than one offence involved in which the offender has played different roles. More than one drug may be involved. The quantity of drugs may be off the scale of the Guideline. The judge must do his or her best to reach a fair assessment of the overall offending, namely culpability and harm, before proceeding to the next stage (step two). The judge should declare their conclusions on step one in their sentencing remarks, for the benefit of the offender, those advising the offender, and this court.

13. At step two, having determined the offender's role and the category of harm, the judge should "use the corresponding starting point to reach a sentence within the category ranges" which follow. The starting point "applies to all offenders irrespective of plea or previous convictions". The judge should then factor in any aggravating or mitigating features and adjust the sentence within the range.

14. Again we emphasise, as the Council emphasises, that the list of aggravating and mitigating factors is non-exhaustive and in some cases "having considered these factors it may be appropriate to move outside the identified category range". In cases where "the offender is regarded as being at the very top of the leading role" it may be justifiable for the court to depart from the Guideline.

15. Mr William Walsh on behalf of the offender Lewis, supported by Miss Brimelow QC for Wijtvliet, focused on those words and upon the fact that the Council deliberately chose to provide only limited guidance for the sentencing of offenders involved in massive importations.

16. Although, in its brief consideration of “massive importations” the Council does not refer specifically to any particular role, counsel suggested that sentences of twenty years and above are currently reserved for those taking a leading or significant role in a massive importation. On that basis it was submitted that the effect of the Guideline in steps one and two, strictly construed, is to shift the emphasis from the weight or quantity of drugs imported to the role of the offender and to reserve departure from the ranges provided in step two for those found to be in “leading” roles importing “massive” quantities of drugs. Mr Walsh submitted, somewhat boldly in our view, that the Guideline permits of no departure for the offender playing a lesser role even in a massive importation of Class A drugs and the sentencing range is thereby fixed by the Category 1 range of six to nine years. Accordingly, if Lewis was correctly assigned a lesser role, the maximum sentence he could receive, however large the importation of Class A drugs in which he played a part, would be nine years.

17. There are three flaws in Mr Walsh's argument: first, the Definitive Guideline is not a statute requiring strict statutory construction; second, the Council's clear intention was certainly to maintain if not increase the level of sentences for drugs offences (save in the case of the so-called "drugs mules" - a very special category of offender); and third, as we have already indicated, the Guideline does not provide a series of boxes into which every offender and every offence must be squeezed with no exceptions permitted. A judge must obviously explain any departure from the ranges provided but departures are possible, as the Council makes plain in the words "where the operation is on the most serious and commercial scale involving a quantity of drugs significantly higher than category 1 sentences of twenty years and above may be appropriate depending on the role of the offender".

18. The focus for sentencing in drugs offences remains the same: it is on culpability and harm and massive importations of drugs have the potential to cause immense harm. If therefore an offender plays a lesser role in an operation on a serious and commercial scale involving a quantity of drugs significantly higher than category 1, a sentence significantly higher than the range indicated (six to nine years) must be appropriate.

19. Thus, we can detect (sentencing of "drugs mules" apart) no dramatic shift in the level of sentencing for drugs offences in the new Definitive Guideline; certainly not in relation to importation cases, which is the category upon which we have focused.

21. We turn to the facts of the individual offenders.

Wijtvliet and Lewis

22. The offender Everadus Wijtvliet is 40 years old and the offender David Lewis is 50 years old. They have both been convicted of involvement in a massive importation of Class A drugs into the United Kingdom in 2009. Their trials were delayed for a variety of reasons. On 7 September 2011, following a joint trial before His Honour Judge O'Mahony and a jury, Wijtvliet was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, namely 99.67 kilos of powder containing 68.73 kilos of diamorphine at 100% purity (count 1) and 5.95 kilos of powder containing 3.6 kilos of cocaine at 100% purity (count 2). However, the jury could not agree upon a verdict in relation to Lewis. He was retried before His Honour Judge James, and on 24 February 2012 he was convicted of the same two offences. The matter returned to His Honour Judge O'Mahony for sentence.

23. On 2 March 2012, His Honour Judge O'Mahony sentenced the offender Wijtvliet to thirteen years' imprisonment on count 1 (heroin) and eight years' imprisonment concurrent on count 2 (cocaine). He sentenced the offender Lewis to nine years' imprisonment on count 1 and to six years' imprisonment concurrent on count 2. We give leave for the sentences to be referred to us as arguably unduly lenient.

The Facts

24. At 1.15am on 16 July 2009 a Dutch registered HGV tractor pulling a refrigerated trailer disembarked from the Calais ferry and was stopped at Her Majesty's Customs freight control at Dover Eastern Docks. The vehicle belonged to Whitefleet Trading, a company owned by Wijtvliet, who had also leased the trailer. The vehicle was being driven by Lewis, who produced paperwork for the delivery, on behalf of Taylors Transport International, Zevennar, Holland, of two items to a location in Suffolk and 32 items to a location in Nottingham.

25. One of the officers noted scuff marks on allen bolts, holding a metal plate in place in the area where the tractor and trailer were attached, as if they had been recently removed. On removing the metal plate, he found eight metal trays, six of which contained tape-wrapped packages of powder.

26. In all there were 206 packages. 200 contained brown powder and diamorphine. The other six contained white powder and cocaine. The total wholesale value of the drugs was estimated at between £1.5 and £2.15 million. The total street value of the drugs was estimated at between £4.15 and £5.2 million.

27. The cavity in which the trays were hidden had been constructed by cutting into the insulation and the floor of the refrigerated unit. The drugs were packed with coffee and lead linings were used in an attempt to confuse sniffer dogs and frustrate scanner systems. The tractor unit was fitted with a tracking device so that Wijtvliet could keep track on the vehicle's movements.

28. In the cab of the tractor four mobile telephones and a piece of paper which related to the trip were found. There was also a lease agreement dated April 2009 at the front of the trailer in the name of Wijtvliet. Examination of the telephones showed that Wijtvliet had been in contact with Lewis after Lewis had set off.

29. Lewis was arrested. When interviewed, he denied knowing anything about the drugs. He said that he had been a lorry driver for fifteen years, and employed for about five weeks by Wijtvliet. He said that Wijtvliet was based at a yard in Etten-Leur, Holland which was owned by another haulier called Ludo. The current trip was his third trip for Wijtvliet in total and his second trip to the United Kingdom. He said that he had used the same vehicle each time but had changed trailers. Investigations revealed that Lewis was in significant debt.

30. At 11am on 16 July 2009, Wijtvliet contacted the Business Support Unit at Dover Docks. He said that he was the haulier and the owner of a lorry whose progress he had been tracking via a GPS tracker. The case officer, James Reid, rang him back on a Dutch number. Wijtvliet called again on 21 July asking how to secure the return of his vehicle and trailer. He became angry when the officer would not say what type of contraband had been recovered. He was told that his vehicle would not be returned to him unless he came to the United Kingdom to be questioned. He phoned again on 30 July and again asked for his trailer. He also said that the investigators should travel to the Netherlands to see him, rather than require him to come to the UK. He was again told he would have to come to the UK to be questioned before his vehicle would be returned.

31. On 25 May 2010 Dutch police officers executed a search warrant at Wijtvliet's business address. They seized computer equipment and several thousand euros in cash. They also searched another address at which they found a metal tray similar to those found concealed in Lewis's vehicle. Documents seized during those searches included e-mail correspondence between Wijtvliet and P&O Ferries booking Lewis's travel.

32. Wijtvliet was present at one of the searches and was spoken to by Dutch police. He then left the Netherlands and relocated to the Canary Islands, where he was arrested pursuant to a European Arrest Warrant issued in August 2010. He was extradited to the UK on 28 March 2011.

33. In a defence statement submitted on his behalf Wijtvliet denied all knowledge of the drugs. He asserted that Lewis was in fact working for his associate, Ludo Nouws. Nouws had previously imported contraband.

34. Wijtvliet had convictions in the Netherlands for road traffic offences, including an offence of death by dangerous driving. Lewis had convictions mostly for offences of dishonesty.

36. Thus, this was a large-scale, commercial operation which was sophisticated and well-organised. A legitimate load was used as cover for a massive importation of Class A drugs concealed within a deliberately constructed hidden cavity. Measures had been taken to avoid detection. The purity of the drugs was relatively high and each offender was motivated by financial reward.

37. Wijtvliet was an organiser of the importation, using his haulage business as a cover. He was involved in arranging the transport, the concealment and the driver. He also monitored the importation and directed operations through regular telephone contact and the use of a tracking device. He recruited Lewis to assist in the importation.

38. Lewis played a less significant role than Wijtvliet, but it was still significant. His was an operational role. He collected the load and drove the lorry into the UK under cover of a genuine load and misleading paperwork. Given the way the drugs were concealed and the size of the load he must have had an awareness and understanding of the scale of the operation.

39. Neither offender had relevant previous convictions. Although Wijtvliet was an organiser, there were others above him for example the man Ludo Nouws. In contrast to Nouws, Wijtvliet had not benefited significantly from the importation in financial terms. He lived modestly with his wife and young family in Holland. As a Dutch national he will serve the first part of his sentence in a foreign country. Lewis was lower down the scale than either Wijtvliet or Nouws and plainly not the prime mover in the enterprise. It was not suggested that he had been responsible for more than one importation.

40. We turn to the way in which the parties and the judge characterised these roles in the court below. Prosecuting counsel pointed to the fact that Lewis was a courier and must have had some awareness and understanding of the scale of the operation. He was motivated by financial advantage and most definitely not in the category of a "drugs mule". The judge correctly observed that under the previous regime a courier's role of this kind was described as a “significant” one. However, for reasons that escape us other than the fact that the offender Lewis did not possess each and every one of the characteristics for a “significant role”, the judge was persuaded by both counsel to conclude that he played a lesser role. We have no doubt whatsoever that Lewis's role fell into the category of “significant” and that he should have been sentenced as such.

41. Had His Honour Judge O'Mahony been the trial judge for Lewis, we might have refrained from interfering with Lewis’ categorisation but he was not. The members of this court, therefore, are in as good a position as he was to assess the role that Lewis played. We shall therefore proceed on the basis that Lewis played a significant role.

42. Similarly, for reasons that we do not entirely follow, counsel suggested that Wijtvliet "ticks one of the boxes" in the leading role category but “several of the boxes” in the significant role category. The judge pointed out that Wijtvliet ticked more than one box in the leading role category but was persuaded finally to conclude that Wijtvliet fell between category 1 and 2. To our mind on the material before us, Wijtvliet fell fairly and squarely in the “leading role” category and should have been sentenced as such. The judge appears to have been overly generous to him. However, he was the trial judge and as such this court should respect factual conclusions he has reached on the evidence called before him. We shall therefore bear them very much in mind.

43. Nevertheless, Mr Garnier submitted that the sentence was unduly lenient in that it failed to take proper account of the aggravating features. Wijtvliet played a partly leading/highly significant role in a massive importation. A sentence in excess of 20 years for offending on this scale would be appropriate.

44. Mr Garnier placed reliance not only on the Guideline but also upon previous decisions of this court in particular Attorney General's References Nos 99, 100, 101 and 102 of 2004 ( R v Whiteway and Others ) [2005] 2 Cr App R(S) 82. The then Vice President of the Court of Appeal Criminal Division (Rose LJ), in giving the judgment of the court, observed:

".... As it seems to us, generally speaking, those responsible for organising the importation of Class A drugs into this country will attract somewhat higher sentences than those responsible, as Whiteway was, for organising distribution in this country. The difference, however, is not likely to be very great. It is perhaps convenient to compare with the present case Soares and Others [2003] EWCA Crim 2488 (5th September 2003), where sentences in excess of 30 years would have been regarded as properly representing the starting point, following a trial, for the prime mover in importing 2,000 to 3,000 kilograms of a Class A drug. Comparison can also be made with Lowe and Others (unreported, Court of Appeal, Criminal Division, transcript 30 October 2003), where two senior, but not top, organisers of importations in excess of 100 kilograms of Class A drugs attracted sentences in excess of twenty years, following a trial.

Our conclusion is that the judge's starting point of twenty years for Whiteway, had there been a trial, was at the bottom of the appropriate bracket for a major organiser of wholesale distribution in this country, bearing in mind he was not the top man in relation to the dissemination of these drugs. That said, the figure of twelve years to which the learned judge discounted the twenty year figure, was, in our judgment, conspicuously overgenerous, having regard, in particular, to the late stage of Whiteway's plea of guilty."

45. Miss Brimelow, aware of similar decisions indicating sentences upwards of twenty years for organisers of massive importations of Class A drugs, sought to persuade us, as we have indicated, that the emphasis in sentencing for drugs offences has shifted from deterrence and heavy reliance on the quantity of the drug to a focus on the role of the offender and the seizure of assets. If that argument failed, as it did, Miss Brimelow conceded that the sentence may be considered lenient in the light of previous decisions but attempted to persuade us that the sentences were not unduly so.

46. She reminded the court that a sentence should not be regarded as unduly lenient unless the sentencing judge has departed “to a substantial extent from the norms of sentence usually applied”: see Attorney General's Reference No 132 of 2001 ( R v Johnson ) [2003] 1 Cr App R(S) 41.

47. Miss Brimelow also reminded us that the sentencing judge here is a very experienced trial judge who presided over Wijtvliet's trial. He was far better placed, as was experienced prosecuting counsel, to place Wijtvliet in his appropriate place in the hierarchy. Wijtvliet was not at the very top of the hierarchy. The man at the top was in all probability the man Ludo Nouws. She invited us to reserve sentences in excess of twenty years' imprisonment for the likes of Nouws, namely for those at the very top of the "leading" role.

48. We disagree. As we have already explained, departure from the sentencing ranges is permitted where there is, as here, a serious and commercial operation involving the importation of a quantity of drugs significantly larger than category 1. For importations of heroin and cocaine this means loads significantly in excess of 5 kilograms. The relevant loads here were 99.67 kilograms of heroin and just under 6 kilograms of cocaine (both at relatively high levels of purity).

49. Whether or not Wijtvliet was at the very top of the hierarchy, he played an extremely important (a leading/significant) role in a major importation. He should have faced a sentence of at least twenty years. The sentence passed in the court below was not only lenient, it was unduly so.

50. We shall quash the sentences of thirteen years and eight years imposed on Wijtvliet on counts 1 and 2 and substitute for them sentences of twenty years on count 1 and fourteen years on count 2, those sentences to run concurrently. The days spent in custody on remand will still count towards the sentence.

51. As far as Lewis is concerned, he played a significant role but not as great a role as Wijtvliet. The total sentence imposed upon him of nine years was unduly lenient. We would have expected a sentence of at least thirteen years. The least sentence that this court can impose upon him, bearing in mind all the factors to which we have referred, is thirteen years on count 1 and nine years on count 2. We quash the sentences below of nine and six years and replace them accordingly with thirteen years and nine years.

Vriezen

52. The offender Vriezen is a 40 year old lorry driver of

previous good character who ran his own company. He was caught importing Class B drugs. At a plea and case management hearing on 23 January 2012 he pleaded not guilty and a trial was set to take place in April 2012. On 16 March 2012, when the defence statement was due to be served, the defence asked for the matter to be listed for him to be re-arraigned. On 19 March 2012 he entered guilty pleas to three counts. There was no written basis of plea and there were no pre-sentence reports before the court.

53. His Honour Judge Martin Joy sentenced him as follows: on count 1 importing cannabis resin: 18 months' imprisonment; on count 2 importing amphetamine sulphate: 18 months' imprisonment; and on count 3 importing methylethylcathinone: three years and six months' imprisonment.

The Facts

54. On 15 November 2011 Vriezen drove an HGV lorry and trailer into the UK controlled zone in Coquelles, France. He was alone. Border control officers stopped him and he produced a valid passport and international documentation for the load indicating that he was carrying 356 boxes of textiles for the Snow and Rock Company (a legitimate company) in Guildford. Vriezen told the officers that the vehicle had been loaded in Belgium but that he had not been present when it had been loaded and sealed. He said that he was driving the trailer for a company called Ixia Logistics and that it was only his second job for them. He said that he had collected the lorry at a car park near Utrecht in the Netherlands after the driver had been taken ill suddenly, and that he had not stopped since collecting it.

55. The vehicle and contents were scanned. An anomaly was noticed at the front of the load by the bulkhead and drugs were identified as being present. Twelve cardboard boxes containing 120 packages (240 kilograms) of methylethylcathinone were found. These were strapped with clingfilm to a legitimate load. A box containing sand held sixteen bars (3.95 kilograms) of cannabis resin and in a second box also containing sand, were found 971 grams of moist (591 grams dry) amphetamine sulphate. A roll of clingfilm was found in the driver's cab of similar manufacture to that around the load. Two mobile telephones were found on which messages had been received obviously tracking the vehicle's progress. There was no evidence of purity of the drugs seized, although the methylethylcathinone was said to be unadulterated.

56. The 240 kilograms of 4-MEC were packaged in a way that was consistent with wholesale supply. The wholesale value was said to be between £960,000 and £1.4 million. The street value was between £2.4 and £3.2 million.

57. The sixteen blocks of cannabis resin (3.95 kilograms) had a wholesale value of between £3,600 and £6,000 and a street value of £11,000. The wholesale value of the 971 grams of amphetamine was said to be between £1,500 and £3,000, and its street value in the order of £9,000.

58. Methylethylcathinone is a cathinone derivative and sold under the names "4-MEC" or "NRG-2". It is a synthetically produced stimulant relating to the parent compound cathinone and is a naturally occurring chemical, one of the psychoactive principals found in the plant "khat". It is commercially available to purchase in bulk from China and the Ukraine. It is not the same as mephedrone, although it produces similar (if weaker) effects. Mr Garnier and Miss Sarah Whitehouse did their best to assist the court to ascertain what might be the appropriate “indicative quantity” for 4-MEC in line with the Guideline, but the evidence from seizures has been too limited to provide much information. Thus, analysing whether 200 kilograms of 4-MEC should equate for sentencing purposes to 200 kilograms of cannabis or to 20 kilograms of amphetamine has been problematic.

59. In all the circumstances, we felt we had no option but to approach this particular case on the basis most favourable to the offender namely on the basis of the “indicative” quantities for cannabis. Should evidence become available that our approach is wrong, it can be corrected in a future case.

60. Mr Garnier emphasised the fact that however one categorises 4-MEC, this was a massive importation of one Class B drug, a category 3 importation of cannabis (another Class B drug), and a category 2 importation of amphetamine (another Class B drug). Vriezen played a significant role, as was properly conceded by Mr James Vine on his behalf and identified by the judge. Accordingly, the starting point and sentencing ranges for counts 1, 2 and 3 would be as follows. On count 1 (the category 3 offence) the starting point is one of two years with a range of 18 months to three years; and on count 2 (the category 2 offence), the starting point is one of four years and a range of two and a half to five years. If we place Count 3 in category 1 for the reasons we have given, the starting point is five and a half years and the range five to seven years.

61. The mitigating factors in the case of Vriezen were that this was an isolated incident, that he had no previous convictions, that and until his arrest he was the sole carer of an elderly relative. He will serve at least part of his sentence in a foreign country and he was looking forward to a return home later this year. His role was that of driver/courier, not organiser. In fact, he was a late replacement for the original driver.

62. Finally, and most importantly (step four of the Guideline), Vriezen deserves credit for pleading guilty, albeit not at the earliest opportunity. Mr Garnier had no quarrel with the 25% discount awarded by the judge, nor did Mr Vine.

63. Looking at Count 3 alone (described as the lead offence) on a straight mathematical calculation one would reach a figure in excess of the figure of three years and six months imposed. Given that Vriezen fell to be sentenced for two other importations, Mr Vine was unable to explain to our satisfaction how the judge reached a final figure of three and a half years for the overall offending.

64. We note that the sentencing judge (an experienced judge sitting in Kent where the courts are faced with a regular diet of drugs offences) was faced with applying a new Definitive Guideline to the large scale importation of a drug which is still relatively unknown. He may not have had as much (albeit limited) help as Mr Garnier was able to give us. We also note that he was encouraged by both counsel to assume that the new Guideline had imposed a more lenient sentencing regime for offences of this kind.

65. As we have made plain, the regime has not changed as dramatically as was suggested. The twin pillars of harm and culpability remain. The principle that the judge must assess the seriousness of the overall offending remains. Where more than one drug features, this may not be straightforward. We shall do the best we can therefore with the assistance that we have now received.

66. In our judgment, the quantity, unadulterated nature and value of the methylethylcathinone alone tell their own story. This was a highly professional, commercial operation in which very substantial quantities of Class B drugs were to be brought into the United Kingdom and eventually distributed on the streets. The offender was a trusted part of that chain of supply and played a very significant role. There is little mitigation other than his previous good character and his plea.

67. In all the circumstances we would have expected a sentence overall for his offending of at least eight years before credit for plea. The sentence below was therefore not only lenient, it was unduly so and we give leave. Allowing for the plea of guilty, the sentence on count 3 must be one of six years' imprisonment. Accordingly, we quash the sentence below on count 3 and impose a sentence of six years' imprisonment. The other sentences will remain unchanged.

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