R v Patrick Ince

This is a renewed application for permission to appeal against sentence, imposed by HHJ John in the Crown Court at Kingston, on 7 April 2022. The applicant is now aged 60 and seeks to appeal his sentence of 20 years’ imprisonment, permission having been refused by the single judge.

On 28 February 2022, the applicant pleaded guilty to conspiracy to supply a Class A drug (cocaine) contrary to section 1(1) of the Criminal Law Act 1977 (count 1) and conspiracy to acquire criminal property, contrary to section 191 of the same Act (count 2). He was sentenced to 20 years’ imprisonment upon count 1, with a concurrent sentence of 67 months’ imprisonment on count 2.

The applicant played a leading role within a highly organised and large-scale conspiracy to supply substantial quantities of cocaine. The conspiracy was discovered after disclosure of messaging using the Encrochat encrypted platform between the applicant and his co-defendants. The conspiracies both to supply Class A drugs and to acquire criminal property involved at least six men and was fully operational between March 2020 until June 2020. Upon discovery of the messaging, it was obvious that these conspiracies were an action and operation prior to March 2020. It was conceded by the applicant, on the basis of the evidence, that this was a successful and professionally organised criminal network. The applicant and a co-defendant, Mark Eldridge, headed the network and were assisted by the other accused men.

On the basis of the EncroChat messaging, the prosecution’s case against the applicant was that he and Eldridge jointly led the conspiracy during which discussions were held about the purchase and sale of Class A drugs in multi-kilogram quantities. Hiding within the EncroChat application allowed the conspirators to speak openly. Whilst the prosecution’s case was initially that the messaging revealed the quantities of drugs being acquired and sold being in excess 165 kilograms, that was reduced upon further examination to 102 kilograms. During the course of the confiscation proceedings following conviction and sentence, the prosecution revisited the assessment of the drugs quantity and, in a report dated 13 March 2023, Mr Enstrom reduced the total figure. He concluded that there was some element of duplication and calculated the total quantity of drugs involved in the conspiracy at 92 kilograms.

Upon entering his guilty pleas, the applicant provided a basis of plea. It is unnecessary to set out all of its terms within this judgment. It can be summarised in the following way. The applicant’s role was junior to that of Eldridge, whilst accepting that it was still a leading role. Further, that the scale of supply had been exaggerated by the prosecution’s interpretation of the EncroChat messages. Examples were given to demonstrate both the applicant’s role and the quantities of drugs involved. It was contended by the applicant that some of the quantities were duplicated, and others were running totals rather than individual and separate quantities.

The judge gave 20 per cent discount upon the sentence of the applicant for his guilty pleas not being entered at the earliest stage of the proceedings. He declined to give any greater discount because the applicant had delayed his plea. The applicant does not seek to argue against the discount he was given.

The judge found that the applicant played a leading role and was an organiser in the buying and selling of Class A drugs on a commercial scale, with links to others in the chain and influence upon others amongst his co-defendants. The judge concluded also that the applicant had close links to the original source in Panama, with money used by both the applicant and Eldridge to arrange for the importation of drug consignments.

The judge considered the applicant’s basis of plea. It was agreed on behalf of the defendant that the judge could resolve any issues upon the papers and without requiring a hearing of any disputed issues. The judge was satisfied that the basis of plea, contending that the applicant played a role junior to that of Eldridge, was wrong. During the course of the trial of the co-defendants the judge had been required to consider the entire contents of the EncroChat messages. Examples of messages chosen within the applicant’s basis of plea were selected and not representative of the whole. The judge concluded that the applicant was fully engaged in a jointly leading role with Eldridge. Further, in relation to the assessment of harm, this was plainly a category 1 offence under the Drugs Guideline. The drugs involved in the conspiracy were substantially in excess of those which formed the benchmark for the sentence guideline namely 5 kilograms. Even allowing for a reduction from the initially assessed drug quantities, the judge concluded that the provable harm was many times greater than 5 kilograms.

On the basis of a category 1 leading role under the Drugs Guidelines, a starting point of 14 years was appropriate with a sentence range of 12 to 16 years. The judge however took into account the narrative within the guideline which precedes the categorisation of step 2 which provides:

“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’s role.”

In sentencing the applicant, the judge concluded that the count 2 conspiracy sentence should be based upon a quantum of £3.9 million. Based upon this assessment, the judge concluded that a sentence of 25 years’ imprisonment, after trial, was appropriate upon count 1 of the indictment, which he reduced by 20 per cent for guilty plea and arrived at the sentence of 20 years’ imprisonment and a concurrent sentence of 67 months was imposed in respect of count 2.

On behalf of the applicant, it is submitted by Mr Martin, for whose submissions we are grateful, that the sentence on count 1 is excessive because it involved too high a starting point based upon the guidelines. It is submitted that the applicant’s role, whilst a leading one, was junior to that of Eldridge and that the judge was wrong to find differently. Further, it is submitted that the judge did not take proper account of the basis of plea, which emphasised the difference in position between the applicant and his co-defendant and the mistakes for exaggerating within the calculation of harm.

In refusing permission to appeal, the single judge stated that there was no arguable basis for the contention that the judge fell into error in his assessment of role or of the harm caused by the offence. The judge clearly took into account submissions made on behalf of the applicant both at sentence and as set out in the basis of plea. The judge’s observation that the basis had carefully selected examples which were favourable to the applicant without addressing substantially a greater number of other messages within the EncroChat evidence. Those supported the finding of equality, the culpability between the applicant and his co-defendant, Eldridge.

We find we are entirely in agreement with the single judge upon his assessment of the grounds of appeal. We should also observe that the further report obtained from Mr Engstrom, dated 13 March 2023, which identified the total drugs as 92 kilograms rather than the total referred to by the judge, still left the court with a very substantial increase in the benchmark for sentencing within category 1 leading role. The extent to which the harm exceeds the benchmark is not a simple mathematical exercise. There can be no doubt that this drugs conspiracy was on the most serious and commercial scale. With close association by both leading the offending with the original source of the drugs. Whilst quantities may vary substantially in the most serious drug conspiracies, 92 kilograms over a 3-month period of established operation, merited the sentence imposed, even if the sentence of 20 years after a guilty plea might be described as severe. We do not find that it is arguably excessive and, accordingly, we must refuse this renewed application.