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 18and 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 12May 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:-

“This was a very sophisticated, well organised and determined criminal network. Those towards the top of the organisation, you Mr Sanghera and you Mr Atkar, were obviously capable of masterminding and resourcing a complicated international smuggling operation and sustaining it over a lengthy period, as the Crown say. .. It is submitted, and I accept, that you both occupy a leading role in the conspiracy with you, Mr Sanghera, somewhat above Atkar in the hierarchy.

You, Sanghera, were closely linked to the original source of the cocaine. You liaised by telephone with contacts in California and Mexico and key times and travelled to the US and Canada. You also had links in the UK to operations such as the Monaghan syndicate to supply cocaine onwards within the UK.........He bought and sold on a substantial commercial scale to a sophisticated operation which involved the cooperation of numerous BA employees in both Mexico and the UK.

You, Atkar, are in my judgment correctly described as Sanghera’s trusted aide or lieutenant, a leader in your own right responsible for organising couriers through O’Meara and Brown. You obtained information about the BA cargo shipments from BA employees, paying cash for that service. You encouraged them to abuse their positions at work, whether or not they were aware of what they were lending themselves to.

Both of you, Sanghera and Atkar, clearly stood to make very substantial profits from this conspiracy. Your high degree of oversight and knowledge is evident from the transcipts of the probe, about a hundred pages or so that were listened to from Atkar’s car.

The Crown say, in my judgment quite correctly, that the use of passenger flights to move criminal cargo, circumventing proper procedures and corrupting airport staff represents a considerable danger to the public. The packages were unmanifested with all the attendant security risks, thinking of explosives and ammunition and indeed ammunition was concerned in court 3.

The quantities of cocaine involved were very considerable. As I have said approximately 40kilos of cocaine handled in the two disrupted importations. The minimum quantity involved is therefore eight times larger than the indicative quantity of 5 kilos for category 1 of the guidelines. Moreover … we have heard plenty of strongly suggestive [evidence] in this court’s judgment that other importations occurred.”

Addressing O’Meara and Brown he said:-

“Mr O’Meara, you were first observed with Atkar in May 2013. Mr Brown, you were first observed meeting Monaghan to collect money on 12 May 2013. The Crown submits, and I accept, that both of you occupy under the guidelines significant roles. Both of you had operational and management functions, arranging couriers and the collection of money for Sanghera and Atkar. You each involved others in the conspiracy, namely the other drivers. You were clearly motivated by financial reward. You, O’Meara, accept that you were being offered £10,000 by Mr Atkar to arrange for another person to collect the cocaine on 24 August.

The August importation alone involved 19 kilos, almost four times the indicative quality listed for category 1. It is submitted by the Crown that even on this basis O’Meara and Brown, your participation falls well above that covered by category 1 and I so find.”

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

“The February importation involved not only 20 kilos of cocaine but 100 rounds of live 9mm ammunition which is prohibited without a certificate for use with a handgun. The maximum penalty is 7 years imprisonment and it has been said by the Court of Appeal that the importation of prohibited ammunition is a serious matter because the inevitable result of supplying ammunition is that another will sooner or later be furnished with the means to endanger life. The smuggling of firearms and ammunition is every bit as serious as the importation of drugs; such importation increases the arsenal in this country of illegally held firearms. It is a matter of considerable significance in the present case that these firearms were being imported for distribution to others.”

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:-

“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.”

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:-

“2.

It is appropriate to start with an overview of the case. Operation Blenheim was a police investigation into an organised crime group in Liverpool which supplied large quantities of Class A drugs to crime groups in Glasgow for onward distribution. The conspiracy involved the use of a number of safe houses in Liverpool to store and mix drugs. The drugs were packaged using hydraulic presses and metal moulds. Some of the drugs seized were of high purity, close to importation. [The] evidence showed that between September 2011 and October 2012, the conspirators made 111 trips to Glasgow to supply drugs, adulterants and collect cash. In total, 23 kg. of Class A drugs (19 kg. of heroin, 4 kg. of cocaine and 1 kg. of 'crack' cocaine) along with 107 kilograms of adulterants with the potential to realise drugs with a street value of £6.7 million were seized during the course of the conspiracy. However, if the seizures were representative, indications were that the couriers transported between one and two kilograms of Class A drugs as well as adulterants on each trip. In view of the number of trips made it could be inferred that overall the conspiracy involved quantities of Class A drugs in excess of 100 kilograms worth between £100 million and £200 million.

3.

As with any case of this nature, the role and responsibility of the offenders ran from the organisers, making vast profits from the operation through to those at the bottom of the chain of organisation, who, although knowingly involved in a conspiracy, were engaged upon it only peripherally. It was the task of the judge to have regard to s. 143 of the Criminal Justice Act 2003 and, when determining the appropriate sentence for each offender, to consider both culpability and harm……..

4.

Although a number of the appellants and applicants have individual issues to raise, in the main, the substantive arguments advanced on this appeal concern the applicability of the guideline concerning supply of a controlled drug, its relationship with the guideline for importation, the extent to which a sufficient distinction was drawn between those at the centre of the conspiracy and others and the impact of personal mitigation. We will deal with these issues generically before considering the detail of each of the appeals and applications that have been argued before us.

The Definitive Guideline

5.

Although the judge considered that the definitive guideline did not strictly apply to offences of conspiracy, it is clear from R v McCalla [2012] EWCA Crim 2252 and R v Khan [2013] EWCA Crim 800 that it does…………..

8.

As for the relationship between the offence of supplying a controlled drug and importation (or, in either case, conspiracy to commit the offence), it is argued that, as a matter of principle, it is appropriate to ensure that the highest sentences are reserved for the latter offenders: in R v Tourh [2009] EWCA Crim 874 for (among other offences) conspiracy to supply a controlled drug of class A, a sentence of 25 years imprisonment was reduced to 22 years for that reason (articulated at para 43). Whether or not this observation can be elevated to the status of a principle, we doubt that it has any practical application to cases which fall to be considered under the guideline which has identical starting points in relation to both offences for leading and significant roles at category 1 and only marginally reduces the starting point (by one year) for a lesser role in relation to a supply offence.

9.

It may be that the culpability at the very highest level is increased when the complexities of arranging importation are taken into account but we doubt whether leading and significant roles in the most structured, persistent and heaviest supply cases (of which this is an example) merit such a distinction. In any event, the definitive guideline identifies the circumstances in which leading, significant and lesser roles can be determined irrespective of the quantity of drug involved and the guideline is careful to identify the use to which indicative quantities can be put. As for weight itself, Hughes LJ in R v Boakye [2013] 1 Cr App R (S) 2, page 6, [2012] EWCA Crim 838 explained that the weights which determine the categories are not thresholds but indications of the "general region" of weight that goes into the relevant category: "it is not exclusively an arithmetical process": see para. 39.

Insufficient Distinctions in sentence

10.

A large number of appellants argue that the judge failed adequately to reflect the relative culpability of the offenders with a sufficiently wide range of sentences. Judge Aubrey certainly referred to the principle of parity commenting that in cases of this nature there was bound to be an element of "crowding or bunching" as to length. The word "crowding" comes from R v Brookhouse [2004] EWCA Crim 3471 in which, having analysed a large number of cases concerned with importation, the court recognised (at para 66):

"20 years is clearly justified on the authorities for an important, but secondary, participation in large scale importation of class A drugs. You do not receive, for the reasons which we have indicated, sentences above 30 years, although they might be possible. In between those two points have to be fitted quite a large number of disparate people who clearly are more involved than those who might receive 20 years, but less involved than those who might not receive 30 years. We seem to have a crowding of this kind in the present case."

11.

In Attorney General's Reference Nos 99-102 of 2004 [2005] Cr App R(S) 82, a 20 year starting point was said to be at the bottom of the bracket for a major organiser of wholesale distribution within this country and, again in the context of importation, Scott Baker LJ in R v Farman Ali [2008] EWCA Crim 1855 made the point (at para 22) that "once the … 20 to 30 year bracket is reached, there is a considerable amount of bunching of varied circumstances".

12.

In our judgment, these observations do no more than reflect the inevitable position which a judge has to confront when seeking to differentiate the role and responsibility of a large number of offenders in the context of the most serious crime in which regard it has to be borne in mind that the penal consequences of conviction extend beyond a custodial term but also include confiscation of the proceeds of crime. Where (as here) quantities exceed category 1, so that sentences of 20-30 years might come into play as explained in the rubric to the guideline, it is an exercise of judgment to scale up the corresponding sentences for those at the bottom rung of leading along with significant and lesser roles in such a way that fairly reflects not only the part played by the offender then being sentenced but also his comparative significance within the offending as a whole. Given the limit beyond which a sentence for this type of offence does not normally extend, it is not surprising that at the highest levels, sentences on different offenders will be nearer to each other than might otherwise be the case. ……………..”

Antecedents and Personal Mitigation

16.

The definitive guideline proceeds on the basis that the starting point is fixed without reference to past record; reflecting s. 143(2) of the Criminal Justice Act 2003, prior convictions, particularly if relevant in nature, constitute an aggravating factor. On the other hand, prior good character and lack of previous convictions or relevant convictions may reduce the seriousness of the offence or reflect personal mitigation. Other relevant factors include remorse, a willingness to address offending behaviour and personal circumstances. These last features can obviously play a significant part in the determination of sentence at the lower end of the ranges: for crime as serious as that involved in these cases, however, the part that they can play is very much more limited.

17.

The judge underlined the gravity of all drug supply offences and did not need to emphasise the degradation and human misery that drugs cause to those who ingest them, their families and the wider community (impacted not least because of the increase in crime committed to pay for their acquisition). Equally, involvement in serious crime impacts on the offender and his aspirations and is likely to create the type of pressure that family members have articulated in letters submitted to the judge and seen by the court.

18.

Unfortunately for the families concerned, the offender has brought these difficulties upon himself and they join the list of those adversely affected by his criminality: these issues can have little impact on the overall sentence for the most serious crime. In Boakye (ibid) the Court addressed an argument focusing upon the impact of custodial sentences upon the families of the defendant, and in particular upon children. Hughes LJ observed (at para. 32) that the position of children in a family might be a relevant consideration in sentencing but that:

"it will be rare that their interests could prevail against society's plain interest in the proper enforcement of the criminal law. The more serious the offence, generally the less likely it is that they can possibly do so".

The same principle applies here. The interests and concerns of the families of the defendants can be of little significance at the most serious levels of criminality.”

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:

“17.

………………..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.”

In our view the same principle must clearly apply to offenders such as Brown and O’Meara who play a significant role in the supply of class A drugs in very large quantities.

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.