Cuni & Ors v R.

Mr Recorder Sallon QC (‘the Recorder’) sentenced all these appellants on 7 April 2017 in the Crown Court sitting at Blackfriars. They all appeal with leave of the Single Judge. Three, Cuni, Byberi and Cera, pleaded guilty, and were given full credit for those pleas. The other three appellants, Gonzalez, Abazi, and Elezi, were convicted after a trial, presided over by the Recorder.

Four appellants, Cuni, Gonzalez, Abazi and Byberi, were sentenced for a count of conspiracy to supply Class A drugs. The period of that conspiracy was 1 July 2015 to 7 September 2016, so over a year. Elezi and Cera were sentenced, respectively, for one and two counts of possessing Class A drugs with intent to supply. Some of the defendants faced, and were sentenced for, other counts, but we do not consider it necessary to say much about those as, given the length of the sentences on the lead counts, the sentences for the other counts (which were concurrent sentences) can have had no more than a marginal effect on the overall sentences.

The Recorder imposed sentences of immediate imprisonment for the drugs counts. They were, in descending order of length, 22 years’ imprisonment for Cuni, 24 years’ for Gonzalez (and a concurrent sentence of two years’ imprisonment for money laundering), 21 years’ for Abazi, 15 years’ for Byberi, 12 years’ for Cera (and a concurrent sentence of 18 months’ imprisonment on a count of possessing a false document), and 8 years’ for Elezi. The record sheet in Elezi’s case must be amended to show that, before sentence, he had spent 140 days on a qualifying curfew, and the Recorder’s direction that 70 days, therefore, should be deducted from his sentence.

The Recorder imposed victim surcharge orders on each appellant in an ‘amount to be advised’. The correct amounts (because of the dates of the offences) are £170 in the cases of Elezi and Cera, and (because of the period of the indicted conspiracy), £120 in the case of all the other appellants. The Recorder also made appropriate ancillary orders. Nothing turns on those and we say no more about them.

On this appeal, Cuni was represented by Mr Kovalesky QC, Gonzalez by Mr Vaughan QC, Byberi by Mr Goudie QC, Abazi by Mr Banks, Cera by Mr Blunt QC, and Elezi by Mr Keogh. Mr Keogh was the only counsel who was instructed for the hearings before the Recorder. We are grateful to all counsel for their oral and written submissions.

The hearing of the appeal was delayed by 30 minutes because the two interpreters who had been booked to interpret the proceedings, despite having been told that they must return to their posts by 1.55 pm, did not in the event return until 2.30pm. We record our concern at this apparently unnecessary, and costly delay, and that we have required it to be investigated.

This was a conspiracy to supply wholesale quantities of cocaine of high purity, close to the point of importation. The evidence showed that the conspirators’ methods were sophisticated. Recently imported cocaine was distributed to top-tier dealers or to their couriers, in return for cash payments. The transactions took place in rented service apartments.

Gonzalez and Cuni visited the United Kingdom regularly during 2015 and 2016. They stayed in London for one or two days each time. Gonzalez often travelled in a Bentley. When that was seized on 6 September 2016, a large compartment was found hidden inside its roof.

Byberi rented a service apartment in Marlin Apartments on the Isle of Dogs in July 2016. CCTV footage from 18 July 2016 showed that he had met Gonzalez there in the Bentley, and then showed him in transactions with four different men. The exchanges on 18 July involved a man called Daku, who was also seen to meet later with Cuni and Abazi, on 5 September 2016.

Byberi also booked a service apartment in Marlin Apartments on 29 August 2016. He used an Italian driving licence as identification. He booked out two days later. CCTV footage showed his movements during that time. There were various transactions. Gonzalez drove his Bentley there. The exchanges from the apartment involved Byberi, Cera (driving a blue Renault), Gonzalez (in his Bentley), a man called Khan, and two others. Byberi was seen giving bags to Cera (count 6) and to Khan. Khan was stopped later that day. He had five blocks of cocaine. Each weighed one kilo. The purity of the cocaine was 92%. Khan was sentenced (at Kingston Crown Court) to 7 years’ imprisonment in relation to those five kilos of cocaine. When his flat was searched a further 800 grams of heroin were found. He received a concurrent sentence of seven years’ imprisonment for that offence.

On 5 September 2016 Cuni rented a similar serviced apartment in a block in Southwark. Cuni was with Abazi at the apartment. They were under police surveillance when Cuni and Abazi met Daku in his silver Mercedes in Tabard Street near the apartment. Gonzalez’s Bentley was again involved and there were similar exchanges.

Later that night Elezi was seen driving a white van. He parked it the same space as Gonzalez had earlier parked his Bentley. He went into the flat. He picked up a rucksack and drove off. Elezi was arrested as he drove away. He had five kilos of cocaine. Its purity was between 88 and 90%.

The next day, 6 September 2016, Cera was seen at that same place. He was given a bag. He was arrested as he drove away. He had 13 kilos of cocaine. Its purity was 93%. He also had a false Romanian photographic identity card in the name of Bogdan.

The flat in Marlin Apartments was searched later that day. A further 12 kilos of cocaine were found hidden behind the kitchen kickboard. The purity was 90% to 91%. Several mobile phones, rubber gloves and two empty hold-alls were also found. The handles of the bag which held the cocaine were tested for DNA. Cera’s DNA was found. Cuni was in the flat. He was arrested. He said that he was from Belgium, but had originally come from Albania. Abazi returned to the Marlin flat on 6 September. The police tried to arrest him but he escaped. He was caught two weeks later, on 19 September, near his home in Northwood.

Gonzalez was arrested in the evening of 6 September 2016 at his serviced apartment in Canary Wharf. His Bentley was searched the next day. The compartment was found inside the roof of the car. 11 packages of cash, totalling £72,070, and €64,410, were found in it. There were also many documents showing reservations at apartments, and boarding passes for Eurostar.

The blocks of cocaine seized on 30 August, 5 and 6 September 2016 were wrapped in similar materials, including a coloured fabric lining. Each had a handle made from the taped outer wrapping. The inner wrappings were also made of a similar striped rubber material, and the prosecution surmised that the handles might have been added to make it easier to remove each package from the compartment found in the Bentley.

The wholesale value of a kilo of cocaine at the material time was estimated at between £28,000 and £38,000. The total value of the 30 kilos seized on 5 and 6 September was therefore about £990,000. Its street value, once adulterated, could have been up to £3.6 million. The cocaine seized was of very high purity, indicating that it had not been adulterated with other powders since being imported into the United Kingdom.

Byberi was arrested on 10 November 2016 outside his home address. He had several mobile phones, cash, and Italian and Albanian identification documents.

The prosecution case about earlier visits to the United Kingdom, and earlier bookings was that the surveillance had only lasted for two days in September, but that the documents suggested that there had been very many more visits. Bookings were made in Cuni's name for 11 to 13 July 2015; 18 to 20 July 2015; 30 January to 1 February 2016 and for 29 April to 1 May 2016. On each trip he travelled back by Eurostar to Brussels on one-way tickets. The bookings in Byberi's name were for 5 and 6 July, and 25 to 26 July 2016. Eurostar bookings were made in either the name of Gonzalez or Arbesu, and were made for two short return journeys on 16 May 2016 and 19 to 21 August 2016. Bookings in the name of Gonzalez were made at the Britannia Hotel for at least 8 previous short stays between 7 June 2016 and 31 August 2016. On 30 August the Bentley was seen in the car park of the Britannia Hotel. Various bookings had also been made at the Radisson Blu Hotel in Portman Square, the Alexander Pope Hotel in Twickenham, and at the Park Grand, Hyde Park Hotel. All were in Gonzalez's name. Various vehicles associated with the defendants travelled through the Channel Tunnel on dates which matched dates of the various hotel bookings. Eurostar bookings were made in Abazi's name for short return trips to Brussels. Records and Abazi's bank statements showed that Abazi was in Brussels for three days in October 2015. During that time Gonzalez travelled from the United Kingdom via the Channel Tunnel in his Bentley. Abazi made two further short trips to Brussels in February and March 2016, and also booked into a hotel in June 2016. There were transactions in Brussels in February, March and June 2016.

The fact that there were many earlier short visits to the United Kingdom by Gonzalez and Cuni suggested that the exchanges seen during the police operation were the last in a long run of such transactions, as part of a sophisticated operation to distribute recently imported cocaine. Telephone call data showed regular contact between Abazi and Gonzalez, and contact between Gonzalez and Cuni. The data also showed that in July and August 2016, Abazi was in contact from the UK with a mobile number that was being used in Belgium. That same Belgian number was also in contact with Khan in the 12 hours before his arrest.

Cuni, like Gonzalez, Byberi and Cera, had no previous convictions. Abazi had two convictions for two offences in 2006 and 2007. Neither was related to drugs. Elezi had one conviction for possessing in imitation firearm (in 2008). The oldest appellant was Gonzalez, who was born in 1968, and the youngest, Cera. He was born in September 1990.

The Recorder said that the case centred on a long-running and highly sophisticated commercial operation to distribute very large quantities of cocaine, ranging from 88% to 93% purity. Huge consignments, which originated in South America, were smuggled into the United Kingdom through France or Belgium via the Channel Tunnel, having been professionally concealed in luxury cars. On one date alone, between 5 and 6 September 2016, some 30 kilograms with a wholesale value of just under £1 million, with a possible street value, once adulterated, of £3.6 million, were intercepted and seized by the police. Part of this haul had been distributed to couriers.

The Recorder then described the notorious impact of the trade in Class A drugs. The rewards for those involved were huge, but the consequences for those who are caught and convicted are ‘very great’. The Recorder was satisfied that those who had been convicted of, or had pleaded guilty to, the conspiracy count, ‘were, in [their] different ways and over different periods of time, deeply involved in this enterprise’. These were ‘grave crimes’ which attracted custodial sentences ‘well above the range set out in category 1’ of the relevant sentencing guidelines.

The Recorder was satisfied that Cuni was involved in the conspiracy from the beginning, helping to direct and organise the supply of these drugs on a commercial scale. His contact with Panama suggested that he had substantial links with others closer to the original source of the drugs and his trip to Jersey with Gonzalez indicated, at the very least, the expectation of substantial financial gain. His activities on 5 and 6 September provided a snapshot of the extent of his activities over a much longer period. On that date, having bought Marigold gloves, kitchen wipes and carrier bags, and helped by Abazi, he received 30 kilos of high purity cocaine which had been secreted in Gonzalez’s Bentley. Cuni supervised the supply of 5 kilos to Elezi, and 13 kilograms to Cera, which left a stash of 12 kilos behind the kitchen kickboard in the flat.

The Recorder had had the opportunity of hearing the evidence in the case of Gonzalez; in particular, his elaborate and untruthful account to the jury, in which he tried to persuade them that he was a mere money launderer and had no idea that he might have been importing and helping to supply drugs. The Recorder bore in mind his personal circumstances. He would receive 15% credit for his change of plea on the money-laundering count. His decision to contest the conspiracy charge, however, meant that he could expect no further credit.

Gonzalez was a regular importer of drugs into the United Kingdom. He travelled to the United Kingdom in luxury cars for short periods, on some 30 occasions during the period of the conspiracy, latterly, in his own Bentley, which, the Recorder was satisfied, Gonzalez had converted to accommodate large quantities of cocaine.

Based on the evidence of Gonzalez’ links with Cuni in Belgium and Jersey and his relationship with Abazi, the Recorder formed the view that Gonzalez played ‘a more than a significant role’. He totally rejected the suggestion that Gonzalez was a mere courier. He was a trusted colleague of Cuni and occupied a place in the upper echelons of the organisation. The formation of his company in October 2015, which never traded (Puxaflow), and his story about making exploratory trips to the United Kingdom to sell wine and open a café or bar, were just a cover, which he planned to use, if and when caught.

The Recorder concluded that Gonzalez had imported commercial quantities of cocaine on many previous occasions within the period of the conspiracy. Irrespective of that finding, his activities on 18 July and 29 and 30 August, and 5 September 2016, which involved the importation and supply of tens of kilos of cocaine, with a wholesale value of millions of pounds, more than justified the sentence passed.

The Recorder had regard to his family circumstances and to his previous good character.

Abazi’s long association with Cuni, his short return trips to Brussels in February and March 2016 and his telephone communication with a contact in Belgium in July 2016 satisfied the Recorder ‘beyond any doubt’ that Abazi played a significant role in the conspiracy ‘before the events of 5 and 6 September’. On that occasion, he gave valuable help in the supply of cocaine. He decided not to plead guilty and gave a complex and untruthful account of his involvement in what he believed to be an arrangement to launder cash. He made good his escape from arrest on 6 September and was only arrested on 19 September, after a struggle. When interviewed, he told a pack of lies about his involvement. The Recorder had borne in mind Abazi’s personal mitigation, in particular his family circumstances, and an earlier episode of ill-health when he was diagnosed with a form of cancer from which he had recovered. Although Abazi was on medication, the prognosis was good.

Byberi abandoned an application to dismiss the case against him and had pleaded guilty the next day. The basis on which he pleaded was designed to minimise his involvement in the conspiracy, in order to bring him within a lower sentencing category. The Court was satisfied that ‘at the very least’ he played a significant role in the conspiracy. He was ‘a trusted UK-based contact’. His involvement in the events ‘On these dates alone must have made you aware of the amount of drugs and the scale of supply in which you agreed to become involved’. He was trusted, not merely to book two hotels in July and August 2016, but to supervise the distribution of cocaine to others for onward sale, and that involved careful management. It was inconceivable that he would have agreed to undertake such a responsibility for a small wage.

On 18 and 19 July and the 29 and 30 August 2016 he was present in the underground car park of the Marlin Apartments on the Isle of Dogs, and met Gonzalez in his Bentley. He was responsible for unloading the drugs and for later distributing them to a number of others, including Daku, Cera, and Khan, for onward supply.

The Recorder had regard to Byberi’s personal mitigation.

Cera pleaded guilty to two counts of possession with intent to supply. Count 5 related to the 13 kilograms of 93% pure cocaine found in the back of his Renault on 6 September. Count 6 related to an unknown quantity of cocaine seen by officers on 30 August to have been moved to his Renault in a heavy holdall black bag. Mr Blunt QC realistically accepted that the amount of that cocaine must have been measured in kilos, not grams.

The prosecution claimed Cera was a trusted courier on both occasions and accepted, at the very least, he played a lesser role. Having said that, on two successive occasions, he intended to supply ‘very substantial quantities of cocaine, well in excess of the maximum amount upon which the starting point in category 1 of the sentencing guidelines is based’. We consider that this is a clear finding by the Recorder that the unknown amount of cocaine referred to in count 6 weighed significantly more than five kilos.

The Recorder took into account Cera’s personal mitigation and his ‘duty to ensure that, overall, the total sentence …is just and proportionate’.

Elezi took possession of 5 kilograms of high purity cocaine for onward supply. His involvement was limited to the events of 5 September. The Recorder bore in mind that Elezi had no previous convictions, but ‘completely’ rejected the notion that he did not know that he was dealing with cocaine. The Recorder took into account Elezis’ personal mitigation.

The ground on which the Single Judge gave leave to appeal against sentence was, in short, that it was arguable that the sentence for the lead conspirator, Cuni, was manifestly excessive, and it followed, if that was right, the sentences for the other conspirators might need commensurate adjustment. There are also distinct points raised in some of the advices on appeal, and in the oral arguments, which we will also consider.

Before considering each appeal in turn, we remind ourselves of some general principles.

First, even where, as in four of these cases, there is a conspiracy, and, as in all cases (except Elezi’s), the known amounts of the drugs well exceed the indicative amounts in the Sentencing Council Guidelines on drugs offences, so that a sentencing judge is permitted to exceed the maximum sentences in the guidelines, this court has said that the guidelines should be borne in mind as a ‘valuable touchstone’: see R v Copeland [2015] EWCA Civ 2230.

We were referred to the recent decision of this court in R v Sanghera [2016] EWCA Crim 94. It helpfully states some the principles, and refers to other considerations which are relevant in cases like these.

Second, and, logically, the first point which is important for those appeals, is made in paragraph 15 of the judgment in Sanghera. Under the regime before the publication of the Guidelines, sentences of more than 30 years would have been an appropriate starting point for the prime mover in an importation of 2000-3000 kg. Apart from extraordinary figures like that, there seems to be, generally, a ceiling of about 30 years.

The Court in Sanghera derived four significant points from R v Welsh [2014] EWCA Crim 1027 (paragraphs 5, 8-12, 16).

Third, we do not get much help from decisions on other appeals in which an appeal has been allowed against a sentence on the ground that it is manifestly excessive. As Bean LJ said in paragraph 26 of Sanghera, it is difficult to discern any pattern of sentences in these types of case. Moreover, we cannot be confident that we know all the relevant facts in such cases. Mr Banks served a table with his advice on appeal which he used (we think) to suggest that his client’s sentence was manifestly excessive. We did not find that approach helpful. We get even less help from cases in which this Court has merely decided, either, on an appeal, that a particular sentence is not manifestly excessive, or, still less, from a case in which this Court has decided, on a renewed application, that a sentence is not even arguably manifestly excessive.

Fourth, those who play lesser roles in such cases can expect higher sentences than the sentences in the Guidelines which apply to amounts of drugs which are themselves in the Guidelines.

Cuni was given a full reduction in sentence for his plea of guilty. His sentence was 22 years’ imprisonment. That equates to a starting point of 33 years’. He relied on a basis of plea which the prosecution did not accept, and which we infer, from his sentencing remarks, that the Recorder did not accept either. His basis of plea was that he was only involved on 5 and 6 September and did not know about the scale of the conspiracy. We consider that the Recorder was entitled to reject that basis of plea.

We consider, having regard to the factors we have just described, that that starting point was manifestly excessive. A starting point above 30 years is reserved for conspiracies which move really huge amounts of drugs. This was not such a case. We consider, nonetheless, that this was a big conspiracy. Mr Gonzalez made some 30 trips. If it is assumed that, in each trip, he carried 30 kilos, that is some 900 kg.

Mr Kovalevsky QC provided us with a helpful speaking note. We have no doubt that, having regard to the factors identified by the Recorder, Cuni played a leading role in this conspiracy. Mr Kovalevsky accepted this, and that this was a Category 1 case. He relied on R v Brookhouse [2004] EWCA Crim 3471 and R v Soares [2003] EWCA Crim 2488. In the former case this Court reduced a sentence based on a starting point of 30 years’ to a sentence based on a starting point of 26-27 years’ (paragraph 62). For the reasons we have already given, we do not find Brookhouse helpful, and we can give no weight to Soares. That was a decision on a renewed application for leave in which this court decided that it was not arguable that a sentence based on a starting point of 27 years’ (before credit for personal factors) was manifestly excessive. In any event, we think that Mr Kovalevsky accepted that cases which pre-date the Guidelines are only relevant now to the extent to which some principle they enunciate has been approved by this Court since the publication of the Guidelines.

We are not persuaded by Mr Kovalevsky’s initial position, which was that the starting point for Cuni’s sentence should have been below 25 years’ imprisonment. We detected a tension in his submissions. He tried to suggest that Cuni’s apparent distance from the observable activities of the conspiracy showed that he was not really involved in the conspiracy, while also arguing that to the extent that he was involved in them, he could not be a very senior figure, as senior figures stay in the background. We reject the suggestion that if Cuni involved himself to pay significant debts he owed, that did not amount to an expectation of substantial financial gain for the purposes of the Guidelines. The Guidelines are not concerned with the use to which an offender hopes to put such gains. We were not impressed by the submission that the Recorder ignored any significant personal mitigation.

We consider that it was open to the Judge to begin from a starting point of around 28 years’ imprisonment. We accordingly quash the sentence of 22 years’ imprisonment and substitute for it a sentence of 19 years’ imprisonment.

Many of the appellants’ counsel submitted, in various ways, that if Cuni’s sentence was reduced, it must follow that their clients’ sentences should also be reduced. We do not accept that overall submission. An error in the lead sentence does not necessarily entail error in the lower sentences. Whether a different appellant’s sentence should be reduced depends on various factors, which include (a) the extent of the error in the lead sentence (b) the reasons why the lead sentence is reduced and (c) the role of that appellant. We have reduced Cuni’s sentence for reasons which were unique to his case. Unless that reduction causes disproportion between his sentence and the others, beyond the ‘bunching’ which is inevitable in cases like this, the reduction in his sentence has no necessary bearing, in our judgment, on the fate of the other sentences.

A key issue in the appeal of Gonzalez is whether the Recorder was entitled to decide that Gonzalez was not a mere driver, but that his role was a more than significant one. We have set out the Recorder’s findings above and do not repeat them. We conclude that it was open to the judge for the reasons he gave to decide that Gonzalez was more than a mere courier, and, as he did, that Gonzalez played a role which was ‘more than significant’. We take into account, in particularly the setting up by him of Puxaflow and his elaborate cover story. We reject Mr Vaughan QC’s submission that the Recorder acted unfairly in making that finding. As Macur LJ observed in the course of argument, Gonzalez’s representatives were on notice, from the prosecution sentencing note, that the prosecution’s contention was that Gonzalez’s role was ‘at least significant’, and they should have been ready to persuade the Recorder that it was not. We consider that there is no material difference between ‘at least’ a significant role and a role which is ‘more than significant’ (without, in either case, being a leading role). We also reject his submission that the Recorder gave insufficient weight to Gonzalez’s personal mitigation.

We consider that the Recorder was also entitled to decide that Gonzalez had imported commercial amounts of cocaine into the United Kingdom on about 30 previous occasions, and that Gonzalez had installed the hiding place in his own Bentley. Contrary to submissions in the advice on appeal, that does not entail a finding that Gonzalez himself physically did that work, but rather, that the work was done at his instigation and with his knowledge.

Our conclusion is that the judge was entitled to decide that Gonzalez’s role was somewhat more than significant. Having regard to his findings about the number of trips, we do not consider that this sentence is manifestly excessive. The sentence has an appropriate relationship with the starting point for Cuni’s substituted sentence. We dismiss Gonzalez’s appeal.

Byberi relied on a basis of plea. The prosecution did not accept it. His sentence equates to a starting point, before credit for plea, of 22 ½ years’ imprisonment.

Mr Goudie QC accepted a ‘significant’ role for Byberi, but nothing more (cf ‘at the very least a significant role’). He submitted that Byberi should have been sentenced on the basis that his involvement in the conspiracy was limited to 25/26 July and 30/31 August 2016, and that the Recorder should therefore have accepted that his role was limited to the supply of about 30 kg of class A drugs. His sentence should have been in the range 12-16 years’ imprisonment.

We reject that submission, which, in effect, repeats Byberi’s basis of plea. We have carefully read the sentencing remarks. The key word in the relevant passage is ‘alone’. We consider that we should read that word in its context, and with a view to making sense of the remarks, rather than construing them in the way that a deed might have been construed in the nineteenth century. If we take that approach, it is clear to us that the Recorder rejected Byberi’s basis of plea. We consider that he was entitled to, for the reasons which he gave. It was designed to minimise Byberis’ involvement so as to reduce the sentencing category. The Recorder entitled to decide that Byberi was a trusted ‘UK-based contact’, and to make the other findings that he did.

If the Recorder was entitled to reject the basis of plea, there was no justification for sentencing Byberi for only supplying a limited amount of drugs on two occasions. He was not charged with, and did not plead to, two counts of supply. To the extent that there is any apparent disparity between Byberi’s sentence and Abazi’s, which we consider next, it seems to us that it is accounted for by Abazi’s personal mitigation, including his poor health. We dismiss this appeal.

Mr Banks did not challenge the Recorder’s findings, or that Abazi played a significant role.

Mr Banks relied on R v Apostu [2016] EWCA Crim 1150. We get little help from that decision. It did not concern a conspiracy. Mr Banks submitted that Cuni’s was the lead sentence (we agree) and that his sentence dictated the other sentences (we have already explained why we reject that submission). As Macur LJ explained in the course of argument, the only consequences for the other sentences which flow from the fact that Cuni’s was the lead sentence are that the other appellants will not end up with the same sentence as Cuni, or with a longer sentence than his.

The prosecution told the Recorder that Abazi was in Brussels for three days in October 2015 when Gonzalez travelled from the United Kingdom via Eurotunnel in his Bentley. He made two further short trips to Brussels in February and March 2016. He was booked into a hotel in June 2016. There was regular phone contact between him and Gonzalez and between Gonzalez and Cuni. In July and August Abazi was in phone contact from the United Kingdom with a mobile which was being used in Belgium. That same number was in contact with Khan’s phone immediately before his arrest.

The Recorder explained why he was satisfied beyond any doubt that Abazi played a significant role in the conspiracy before the events of 5 and 6 September. On that occasion he gave valuable help in the supply of cocaine. He had given a complex and untruthful account in evidence. He had also escaped from arrest. He had told a pack of lies on arrest. The Recorder expressly took into account family circumstances, and Abazi’s earlier bout of cancer.

We do not consider, bearing in mind the factors which the Recorder took into account, that this sentence was manifestly excessive. We dismiss this appeal.

We turn to Cera and Elezi. These two appellants were not charged with the conspiracy count. Elezi possessed five kilos of cocaine on one occasion with the necessary intent, and Cera, 13 kg of high purity cocaine on one occasion and a heavy bag of cocaine on another, which, on the Recorder’s findings, must have contained ‘well in excess of’ five kilos.

Elezi’s sentence was 8 years’ after a trial. Cera’s (2 consecutive sentences of 6 years’ imprisonment) equated to a starting point of 18 years’ after a trial.

The amount of class A drugs the subject of Elezi’s conviction was the indicative amount for Category 1, that is, the amount of drugs on which the Category 1 starting point is based. That starting point is seven years and the range is six to nine years. We can see no basis for interfering with the Recorder’s sentence for this offence. He was entitled to move up from the starting point to reflect the high purity of the cocaine (93%).

We dismiss this appeal.

The starting point for Cera’s sentence, despite the fact that he was not charged with conspiracy, was quite close to the starting points for the sentences of Abazi and Byberi, who were found to have significant roles in this conspiracy. The conspiracy must have involved much greater amounts of class A drugs than the amounts to which the counts faced by Cera related. It was active for 14 months. We consider that Cera’s sentence does not sufficiently reflect the difference between Cera’s limited role, and the roles of the conspirators, or the scale of criminal activity to which each pleaded guilty or of which each was convicted, or its duration. Whether or not consecutive sentences were to be passed, the overall sentence for Cera’s offences in our judgment breaches the totality principle.

Cera’s culpability, and the harm which he caused, were greater than those associated with Elezi’s offence. The Recorder would have been justified in passing a higher sentence on each count to reflect those factors, or a higher sentence on the lead count and a concurrent sentence on the lesser count. We do not consider, however, that he would have been justified in passing a sentence considerably outside the range on either count, bearing in mind that 5 kg is the indicative amount on which the starting point for Category 1 is based. We infer that the Recorder recognised this by passing the equivalent of a sentence of 9 years’ imprisonment on each count. The Recorder was not justified in our judgment in passing an overall sentence of 12 years’ imprisonment after a plea of guilty, however.

We quash the sentence imposed on Cera on count 6, and substitute for it a consecutive sentence of three years’ imprisonment. The total sentence is nine years’ imprisonment. The sentences on counts 4 and 5 are not affected.

We allow the appeal to that extent.