Pitts & Ors, R. v

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.

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.

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

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.

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.

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 EWCA 1027 refer.

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.

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.

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.

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.

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.

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.

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.

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)

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

Harding (Committal for sentence ) Whilst on remand at HMP Preston he was found with a mobile phone and two sim cards in his cell.

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.

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.

Bowden:

Waters.

Rooks.

Harding.

McComb.

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.

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.

Murphy.

Pitts.

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.

McDonald.

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.

Knight.