Sanghera & Ors v R

The four appellants against sentence participated to varying degrees in an enterprise to import cocaine directly from Mexico aboard British Airways transatlantic flights from Mexico City to London Heathrow. On arrival in the UK the drugs, disguised as innocuous packages, would be unloaded in a BA warehouse facility and then collected by couriers using false documents for cutting, distribution and consumption. The success of the scheme depended on the participation of corrupt BA employees who were able to bypass the security arrangements to ensure that the cocaine was loaded in Mexico and identified and retrieved at Heathrow.

On 7 February 2013 Flight BA242 from Mexico City landed at Heathrow at 2pm. A box containing cocaine and ammunition was handled by an employee at an airport warehouse facility and released to a courier, David Walton from LHR Logistics, who produced a fake customer release notice allowing him to take custody of the package. Surrey Police followed the package to a residential property in Staines. Three men were discovered there unpacking 21 1kg packages of cocaine at 84-88% purity. Two sealed vacuum packs were also found containing 100 rounds of 9mm ammunition. The police continued with surveillance of the conspirators. Between 18 and 21 February 2013 the appellant Sanghera met a man called Christopher Monaghan, who was believed to be the intended recipient of part of the importation.

On 12 May 2013 Monaghan was seen to hand a two inch wad of banknotes to the appellant Brown. The Crown’s case was that Brown was acting as a middleman to attend to Monaghan’s outstanding debt as a result of the disrupted importation. Sanghera travelled to Canada and the USA between February and August of 2013 in furtherance of the conspiracy.

On 22 and 23 August 2013 police observed meetings between the appellants Atkar and O’Meara. There was a surge of telephone activity between Sanghera and his Mexican and Californian contacts as well as an increasing number of calls between the conspirators as they made arrangements for a further importation. On 23^rd August 2013 a BA employee delivered the provisional booking list for the next day’s flight BA242 arriving from Mexico to the appellant Atkar in a car park in Slough.

On 24^th August 2013, as in February, a box removed from the airport warehouse and released to a courier, who drove off in his van in convoy with another van. The box was transferred to the second vehicle which was then stopped by uniformed police. The box was found to contain 19 1kg packages of cocaine at 83-95% purity. Following the seizure of the box, there was numerous telephone calls between the appellants. Sanghera and Atkar were recorded discussing the consequence of the lost shipment. The appellants, except for O’Meara, were arrested on 16^th October 2013; O’Meara (who was by then in Spain, to take part, we were told, in a boxing tournament) was arrested at a later date.

The two shipments of cocaine had a combined weight of almost 40kg and a wholesale value of over £2 million. The street value would of course have been far greater.

Sanghera and Atkar were charged with conspiracy to import cocaine, Brown and O’Meara with conspiracy to supply cocaine. In addition, Sanghera was charged with conspiracy to import the ammunition. A preliminary hearing took place in the Crown Court at Southwark on 31 October 2013. A trial date of 31 March 2014 was set at that hearing.

The plea and case management hearing (PCMH) was held before Judge McCreath on 16^th January 2014. Atkar pleaded guilty but on the basis that he accepted involvement in the August importation but not the February importation. The others pleaded not guilty.

Sanghera, on 18^th February 2014, indicated a plea of guilty on a similar basis to that of Atkar, namely that he accepted involvement in the August importation only. He pleaded guilty to the ammunition charge on 28^th March 2014. O’Meara and Brown, who were only accused of involvement in the August consignment, indicated pleas of guilty on 12^th and 28^th February 2014 respectively.

There was considerable delay before any of the present appellants was sentenced. It is not suggested that any of them was to blame for this. Eventually they appeared before Judge Robbins at Southwark on Friday 20^th March 2015. By this time Sanghera had withdrawn his basis of plea: he accepted that he was to be sentenced for a conspiracy which covered both importations of cocaine. He submitted a revised basis of plea, which was accepted by the prosecution, stating that there were others above him in the conspiracy. No doubt there were.

Atkar maintained his original basis of plea. A Newton hearing was therefore held in which the prosecution called evidence of a recorded telephone conversation between Sanghera and Atkar on 24^th August 2013. There was reference to a period of five minutes. Sanghera said “in that five minutes you are likely to get pulled over” and Atkar said “In the same fucking spot. We’ve had plenty.” The prosecution relied on the latter remark as showing Atkar’s surprise and discomfort that he was under observation and about to be stopped or arrested in the same location at which those involved in the February importation had been detected. Atkar gave evidence before the judge at which he denied the conversation and denied involvement in the February transaction. The judge was satisfied to the criminal standard that Atkar had been involved in the earlier part of the conspiracy. The entire Newton hearing lasted just under an hour. The prosecution then opened their case against all four defendants. After hearing mitigation in the afternoon session, the judge passed sentence the same day.

In his sentencing remarks the judge said:-

Addressing O’Meara and Brown he said:-

Turning to the charge of conspiracy to import ammunition, to which Sanghera had pleaded guilty, the judge said:-

The judge sentenced Sanghera to 25 years imprisonment for the conspiracy to import cocaine and 5 years consecutive on the ammunition charge, making a total of 30 years imprisonment. Atkar was sentenced to 21 years imprisonment; O’Meara and Brown to 13 years each. Although the judge had earlier in his sentencing remarks set out the chronology of the pleas of guilty, he did not explain what starting point he had taken and what reduction for the plea of guilty he had allowed in each case.

Each of the appellants appeals against sentence by leave of the single judge.

We should mention that we were given, as the judge was, some limited information about other participants in the February importation. Monaghan was sentenced to a total of 16 years imprisonment for two drugs supply conspiracies and three counts of money laundering at the Guildford Crown Court on the 11^th February 2015. This included a sentence of 12½ years for the conspiracy which culminated in the February 2013 importation in which he was considered to have played a leading role. One difficulty with drawing any conclusions from that sentence is that there was evidently a significant reduction for totality. We were told about six other defendants who were sentenced at Kingston Crown Court on 11^th October 2013 for involvement in various respects in the early conspiracy: for example Stuart Walton, assessed as playing a significant role as a driver, was sentenced on the basis of a 12 year starting point. We know so little about the facts of their involvement, the exact role they played and the personal mitigation which may have been involved in any of their cases that it is difficult to draw any useful conclusions.

It is most regrettable that the judge did not indicate what credit he was giving for any of the pleas of guilty. Since he did not, we have had to decide ourselves what reduction should have been given in each case. None of the defendants entered an unequivocal plea of guilty at the first reasonable opportunity. The trial date was set at the preliminary hearing. Even at the PCMH more than two months later there was no unqualified plea of guilty from anyone, although Atkar admitted the charge to the extent of the August importation.

We begin with Atkar. The credit to which his plea of guilty at the PCMH would otherwise have entitled him is inevitably diluted by the fact that he took the issue of participation in the earlier phase of the conspiracy to a Newton hearing at which he gave evidence and was disbelieved. But as against that, it is in our view important in a complex and multi-defendant case to give particular credit to the first defendant to break ranks and plead guilty. We consider that Atkar should have been given a discount of 20% for his plea.

Sanghera’s credit for his plea of guilty on the drugs charge is likewise diluted by the fact that it was offered on the same limited basis. It is right to say that he abandoned his denial of involvement in the February importation shortly before he was sentenced without taking the matter to a Newton hearing. But he cannot claim the same credit as Atkar for being the first to break ranks. We consider that the level of discount for plea on the drugs charge in his case should have been 1/6th. On the ammunition charge the plea of guilty was so late that he was not entitled to more than a 10% reduction, although in his case there is the separate question of totality.

Brown and O’Meara tendered unqualified pleas of guilty in the weeks following the PCMH. Mr Graffius, for O’Meara, submitted that as the preliminary hearing was held in his client’s absence the plea and case management hearing should be regarded as the first reasonable opportunity for his client to have entered a plea of guilty. We do not accept that this should make any difference: O’Meara could have indicated through his solicitors his intention to plead guilty as soon as he was arrested. We consider that the appropriate level of discount for both Brown and O’Meara is 20%.

As the judge noted, the table of sentencing guidelines for the importation or supply of class A drugs conspiracy is based, even in Category 1, on an indicative quantity far below those involved in this case. The guideline gives a starting point of 14 years custody for a leading role in category 1 based on an indicative quantity in the case of cocaine or heroin of 5 kg. The category range is 12-16 years. On page 10 of the guideline there is this important statement:-

We were referred to a number of decisions of this court on sentencing for the importation or supply of large quantities of class A drugs. Some of them dated back to the 1990s, long before the adoption of the current definitive guideline in 2012.

An important recent case is Welsh [2014] EWCA Crim 1027 where Sir Brian Leveson PQBD said:-

Rose LJ observed in Attorney General’s References no 99-102 of 2004, Whiteway and Others [2005] 2 Cr App R S 82 at paragraph 43 that in the previous case of Soares [2003] EWCA Crim 2488 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 2000-3000 kg of a class A drug. These extraordinary figures apart, it does appear that there is generally a ceiling of 30 years for the starting point, as the President’s judgment in Welsh and its citation from Brookhouse indicate.

It is difficult to discern any clear pattern of sentences in the reported cases involving class A drugs greatly in excess of the Category 1 indicative quantities. Mr Scobie QC for Sanghera pointed out to us that in Welsh itself the quantity of drugs involved was 100kg, said to have a street value in excess of £100 million. Christopher Welsh Jr, described as the head of the organisation, was given a sentence of 16 years, 8 months imprisonment, representing a starting point of 25 years before discount for a plea of guilty at the first opportunity. But we do not accept that it must follow that the starting point in Sanghera’s case ought to have been lower than 25 years. Firstly, it should be noted that the conspiracy in that case was to supply, not to import, heroin and cocaine. Secondly, this court was considering defence appeals against sentence, and held that the sentences were not excessive: it does not follow that a slightly longer sentence on Christopher Welsh Jr would have been reduced on appeal. A contrasting decision is Back [2009] EWCA Crim 754. The principal defendant (Sirignano) had pleaded guilty to two counts of conspiracy to import and two of conspiracy to supply, the total weight of the drugs being about 15.8 kg at high purity. He was described as the “dominant person in an organisation which imported, distributed and supplied cocaine”, which cannot be said of Sanghera; on the other hand, the quantities were less than half of the 40kg involved in the cases of Sanghera and Atkar. This court held that the appropriate starting point in his case before discount for plea was 25 years, not the 28 years which the trial judge had adopted.

In Attorney General’s References (nos 15, 16 and 17 of 2012) (David Lewis and others) [2013] 1 Cr App (R S) 52 Hallett LJ said:

Mr Scobie QC for Sanghera submitted (correctly, we think) that to reach a sentence of 25 years on the drugs charge before discount for plea the judge must have adopted a starting point of at least 30 years, perhaps even slightly higher. Mr Scobie accepted that importation of 40kg of high purity cocaine is a substantial quantity, but sought to draw a distinction between the present case and cases involving hundreds of kilograms of class A drugs. He argued that the maximum starting point of 30 years established by the case law must be reserved for cases of “massive quantities”.

On the ammunition charge, Mr Scobie rightly accepted that a consecutive sentence was appropriate, but submitted that the figure of 5 years, only 2 years below the statutory maximum, was clearly excessive for importation of a limited quantity of ammunition, and failed to take account of totality or to give any credit for the plea of guilty, albeit one entered at the last moment.

Mr Duck QC for Atkar submitted that his client’s part in the conspiracy, as Sanghera’s lieutenant, should be regarded as “at the lower end of a leading role”. Atkar was the first to plead guilty and should be given credit accordingly. Mr Duck said that his client now accepted that the judge’s findings on the Newton hearing could not realistically be challenged, and conceded that the basis of plea which the judge held at that hearing to be false must dilute that credit to some extent; but he observed that the Newton hearing had occupied very little court time. He submitted that the judge must have taken a starting point for Atkar which was far too high.

Mr Vullo QC for Brown and Mr Graffius for O’Meara emphasised that their clients had been involved in the August episode only. If the judge allowed Brown and O’Meara a 20% discount for their pleas of guilty, he must have taken a starting point of 16 years, which counsel submitted was far too high for a defendant playing a significant but not a leading role.

Mr Vullo also submitted that there was an unfair disparity between his client’s sentence and that previously passed on Walton in respect of the February consignment: for the reasons given above we are not attracted by that argument.

This was a very serious conspiracy involving (in the cases of Sanghera and Atkar) nearly 40kg of high purity cocaine, a relatively sophisticated international smuggling operation extending over several months, and the corruption of airport staff. We agree with all the judge’s observations about the aggravating features of the case. Nevertheless, we have come to the conclusion that each of the appellants’ sentences should be reduced to a limited extent.

We begin with Sanghera. Although he played a leading role in the conspiracy, he was not its mastermind; and the quantity of 40kg, though eight times the indicative quantity for Category 1, is not as great as the most massive importations to have come before the courts. These two factors in combination persuade us that the starting point of 30 years which the judge must have adopted was wrong. We consider that the appropriate starting point in his case on the drugs charge is 27 years; applying a discount of one-sixth, the sentence in his case on that count will be one of 22 ½ years. In respect of the importation of 100 rounds of ammunition the consecutive sentence will be 3 ½ years, making 26 years in all instead of the 30 years imposed by the judge.

Atkar was described by the judge as being a leader in his own right, but as Sanghera’s trusted aide or lieutenant. The starting point in his case should have been 24 years. A reduction of 20% from this would give a figure just over 19 years. We shall substitute a sentence of 19 years for the 21 years imposed by the judge.

In the cases of Brown and O’Meara we consider that the starting point should have been 14 years. A reduction of 20% from this would give a figure just over 11 years. We shall substitute sentences of 11 years on each of them for the 13 years imposed by the judge.

The appeals are accordingly allowed to the extent which we have indicated.